Lawyers: The unelected legislators of our rights

Millions of people in the United States believe that our systems of government and justice are rigged, and they are right. What most people may not realize, however, is that their individual rights — rights supposedly protected by the Constitution of the United States – are being taken away by the very institution sworn to uphold those rights.

Our elected representatives rely on huge sums of money to be elected and then re-elected. Without a steady stream of campaign funds, they have little to no hope of holding their seats. Most of this money is provided by large corporations, through their contributions to political action committees.

{mosads}This system leaves all our representatives, congressmen, senators, and even the president, beholden to the large corporations — the very corporations they are supposed to regulate.

The loser in this equation is the average American. Congress no longer fights for consumers and average people the way it is supposed to. We have to look no further than the overall approval rating for both parties, which hovers around 18%. You don’t have to be a math whiz to figure out that this means that a whopping 82% of Americans don’t approve of the job being done by the very representatives that we elected.

So who are the ones fighting every day to keep the corporations from smashing the rest into the ground and running roughshod over the very people who elected them?

Trial lawyers. Yes, trial lawyers. The trial lawyers, who the Chamber of Commerce, the attack dog for the large corporations, spends millions of dollars to attack and belittle.

Large corporations are using corporate money to take away many of our rights. The most important right that is being taken away is the right for a jury of our peers to decide civil trials, because corporations have pushed disputes from the courts into arbitration.

Consider that in 2015, the Supreme Court ruled that AT&T could not be sued for  allegedly misleading customers by promising unlimited data that could slow down if you used 3GB or more in a given month. Why?

Because affected subscribers all signed contracts allowing AT&T to send disputes to individual arbitration. In other words, your right to a class action or trial by jury was, in essence, contracted away – buried in the fine print of a massive contract. Most consumers are likely not even aware that they’ve given up this right. Without class action and the right to trial, a company can cheat millions of people out of two dollars a month.

On the surface, arbitration might sound like a good idea. It lessens the workload of the courts and judges and lightens up the docket. However, when a judge hears your case in front of a jury of your peers, you don’t have to pay that judge’s bill at the end of the trial. His or her salary is already paid.

In arbitration, you not only have to pay the hourly rate of an arbiter, you likely have to pay the hourly rate of three arbiters. And they will most likely be chosen by the corporation you are suing! The cost of a one-week arbitration can easily cost tens of thousands of dollars, all of which YOU are liable to pay!  

Or how about those of us who take pharmaceutical drugs?  Most people are not aware that (1) your insurance company can refuse to allow you a name-brand pharmaceutical and can force you to take a generic; and (2) if the generic medication causes you severe harm, you have no legal recourse because the Supreme Court of the United States has determined that a generic drug manufacturer is immune from any lawsuit for damages caused the by the drug.

Once again, giant pharmaceutical corporations make millions of dollars of donations to a political candidate, and then receive favorable rulings from our nation’s highest court, effectively shutting down your legal rights under the Constitution – and most likely shuts them down without your knowledge. [See, Mutual Pharmaceutical Co v. Karen Bartlett, 570 U.S. __ (2013); Pliva v. Mensing, 564 U.S. __ (2011)] 

Article VII of the Constitution of the United States guarantees all American citizens the right to a trial by jury. “In Suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.”

This Constitutional right should remain sacred in our justice system, and should not, under any circumstances, be for sale. All cases should be decided using the rules of law and the rules of evidence — by you, your neighbors and your fellow citizens.

If you have a cell phone, if you rent a car, if you have health insurance, or even auto insurance, and you’ve signed the lengthy, hard-to-read, hard-to-understand contract that accompanies these items, chances are you have given up your Constitutional right to a trial by a jury of your peers, and have unwittingly agreed to binding arbitration for any potential legal claim.   

Do you know where your elected representatives stand on the issue of mandatory arbitration, or on protecting your Constitutional rights?  If not, you need to find out. Congressmen and senators will almost uniformly support it — even though their job is to support YOU! They have been told by the corporations that fund them that arbitration will eliminate frivolous lawsuits, keep the courts unclogged, and prevent needless legal fees. But what it really does is eliminate your Constitutional rights.

The only thing standing between you and corporations bulldozing your rights are trial lawyers. We fight every day to keep the wealthy and the giant corporations from rigging the system beyond repair. Take a moment to find out your elected officials’ positions on these very important issues, and vote accordingly!  

Mike Burg is the founding shareholder in the law firm Burg Simpson Eldredge Hersh Jardine PC, of which former Senator Alan K. Simpson is a partner. He has tried over 185 cases, and his clients have received settlements, judgments, and verdicts in excess of $500 million. Mr. Burg is the author of Trial By Fire: One Man’s Battle to End Corporate Greed and Save Lives. He can be reached via email at gclement@burgsimpson.com.

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