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The 7th Amendment: A gift from our country’s founders

Benjamin Wagner is president of the Wisconsin Association for Justice. He is also a shareholder at Habush Habush & Rottier and is certified as a trial specialist by the National Board of Trial Advocacy.

Benjamin Wagner is president of the Wisconsin Association for Justice. He is also a shareholder at Habush Habush & Rottier and is certified as a trial specialist by the National Board of Trial Advocacy.

This year marked the 225th anniversary of the Bill of Rights. Among the many provisions of this fundamental document is the right, afforded by the 7th Amendment, to a civil jury trial.

The key promise of the 7th Amendment is that “the right of trial by jury shall be preserved.”

We must heed these wise words today.

The 7th Amendment’s guarantee of the right to a civil jury trial is mirrored, and indeed expanded by Wisconsin’s Constitution, article I, § 5. A similar guarantee is found in most other state constitutions. The right to have civil jury trials was once recognized throughout the world. The United States now, though, is one of the few countries that continues to offer this protection to all citizens. We should be proud of the role the civil jury plays in resolving disputes democratically, with as little government intervention as possible.

Despite the exaltation of the civil jury trial throughout our foundational governing documents, the 7th Amendment is one with which few lawyers, and even fewer citizens, have direct experience. Moreover, its preservation is rarely subject to extended political debate.

Today, less than 1 percent of civil cases are resolved by jury trial. The trend is not new, and there are many reasons why jury trials have become increasingly rare. It is also unlikely that this trend will reverse. Regardless of these developments, the civil jury trial was enacted for important reasons, which remain true today. We should be proud that this option remains in place more than two centuries after it was first offered in the United States.

The rarity with which 7th Amendment rights are invoked does not diminish the role they play in shaping our justice system, improving the skill and knowledge of lawyers and forever refining our democratic experiment. We must continue fighting to ensure that civil jury trials remain in the arsenal of our democratic institutions.

The right to a civil jury trial is firmly rooted in the vision of the founders of our state and country. The 7th Amendment emerged from the demands of small-government advocates who were wary of granting too much power to government officials — be they legislators, bureaucrats or judges.

The 7th Amendment was included in the Bill of Rights to ensure local voices would have a role in shaping the laws that governed their lives. Before the War of Independence, colonists were required to follow British laws, over which they had no influence. Colonists, however, could serve on juries. This ability provided a powerful means for early Americans to establish their voice in governance. From this experience, it should be no surprise that the civil jury trial was among the rights that a powerful faction insisted be added to the Constitution. Scholars believe that James Madison drafted the 7th Amendment at the behest of a group that many feared would demand a second Constitutional Convention had it not been included.

The civil jury trial continues to be valuable today. At a time when our state and our nation is divided over the size and scope of government, few can dispute that effective, efficient local action is an ideal way to settle disputes. The jury trial does its job without getting caught up in partisan or ideological divides. Trials give communities an opportunity to settle disputes in a way that reflects common values while also being thorough, open, and having minimal reliance on government support.

Trials give citizens a voice long after a verdict is reached. Civil jury trials gather important facts and often help answer ambiguous questions of law and fact. They also establish important guideposts for conduct between citizens and for the resolution of disputes. Every case that is tried allows for countless others to be resolved more efficiently and at lower cost, most often without the need to go to trial. The jury’s voice speaks as loudly in these settlements as it does through its verdicts.

Jury trials improve our civil justice system and educate citizens and lawyers alike. As lawyers, we learn from every jury trial. This makes us better advocates for our existing and future clients. This is true for lawyers on each side of a case. The winner of a case often celebrates the result as an example of justice being served. A case lost may be cause for frustration, but it is also an occasion for examination and improvement. Both sides benefit from the community’s role in reaching the outcome.

Jurors often find the experience similarly fulfilling. Citizens who serve on juries can enter the process feeling irritated and inconvenienced, but end up concluding that their service was both enlightening and fulfilling. Jurors are often grateful for their opportunity to serve. The drafters of the Bill of Rights would have been pleased to see these outcomes.

The 7th Amendment is among the most powerful safeguards available to both citizens and lawyers alike, and yet it is often ignored. It is a pillar of our democracy. We must protect this constitutional right and not allow it to atrophy. Lawyers, judges and citizens all benefit from having trial experience. And — importantly — our democracy is strengthened with every case that is tried to a verdict.

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