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You Only *Thought* You had a Constitutional Right To a Jury Trial

October 1, 2013

 

California's Constitution guarantees the right to trial by jury, and says that it is an "inviolate right," meaning it's a right that can't be violated.

Oh, but violate it we have. You only thought you had a constitutional right to a jury trial, but if you signed an arbitration agreement when you started working -- or even signed a receipt for an employee handbook with an arbitration agreement in it that you likely didn't read because you were so dang happy at finally getting back to work again -- then you probably sacrificed your right to a jury if things ever go south with your employer.

The good news is that you can still bring a lawsuit when you have an arbitration agreement. That's the end of the good news.

The bad news is that you don't get to have a jury if you're bound by an arbitration agreement. More bad news is that, instead of a jury, you get an arbitrator deciding your case. What's an arbitrator? An arbitrator is a retired judge or a lawyer who gets paid to decide your case. Guess who pays the arbitrator? And guess who pays the arbitrator whenever they get sued, and has financed half of the arbitrator's vacation home and their children's private school educations? Yes, your employer is the only repeat player in the room, and is paying thousands of dollars to the person deciding your case against that same employer. Remember that constitutional right to a jury trial? I wouldn't blame you if you don't.

And the bad news doesn't stop there. When you have a trial by jury, if the judge or the jury get something wrong, you have a right to appeal. You can ask three appellate judges to look at the case and decide whether the trial followed the rules or not. In an arbitration, those same three judges won't even look at whether the arbitration followed the rules or not. Yes, even if the arbitrator didn't follow the rules, the arbitrator's decision will still stand.

By now, you won't be surprised to learn that arbitration results are statistically much worse for employees than jury results. One study by Cornell University professor Alvin Colvin found that plaintiffs (the person suing) win about 43% of the time when they have a jury, but only 21% of the time -- less than half the success rate -- in arbitration. Again, it gets worse. If the employer has other cases with the same arbitrator, the plaintiff's success rate drops to a dismal 12%.

Courts like arbitration because the courts are under-funded, and they get to clear out their calendars by sending cases to arbitration. Employers like arbitration because they almost always win, and when they lose, they don't have to pay nearly as much as a jury would make them pay. Arbitrators like arbitration because they get paid a lot of money. There's only one type of person who loses in arbitration, and that type of person looks a lot like you.

So what can you do about it?

The best thing to do is to call your United States Congressperson and Senators right now, and tell them you want a law that excludes arbitration agreements from employment and consumer contracts. You can let them know you had no idea what you were signing, because you probably didn't, and it's unfair for employers to make people waive their constitutional rights just to feed their families and put gas in their cars.

If you find that you're stuck with an arbitration agreement, there are ways out of it, but the courts are making it harder and harder. A good people's lawyer will, if it makes sense for your case, look for every way legally available to get out of an arbitration agreement. There are some tricks of the trade, but again, overworked trial judges really like arbitration, so the best long-term solution is getting Congress to pass a law that favors working people.

Your right to a jury is an important constitutional right, and it should be there for you when you need it. Arbitration is your employer's best effort to make sure it's not.

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