The attorney-client privilege protects private communications between a client and a lawyer. This sensible rule promotes a full and frank discussion so that the client can get the best advice without the interference of prying eyes and ears. It assumes the communications are strictly private – not in the presence of anyone other than the client and lawyer. It also assumes no disclosures to third parties that would waive the privilege – by the client or the lawyer. Here’s an example to illustrate the point: Let’s say that early in my career handling plaintiffs’ medical malpractice claims, a client drove his car through a hospital’s glass front. The fact of the accident is not attorney-client privileged. I could write about the fact that my client was found in his car, half in and half out of the hospital window, without violating my ethical duty to the client. However, my private discussions with my client (before and after) would be privileged, and I couldn’t share them on my blog.

Work-product privilege protects our thoughts, impressions, and strategies in the case—as long as they are not shared in public or with any unauthorized third party (authorized third parties, for instance, would be the many vendors used to help work the case, and the privilege binds them). Staying with our example, my thoughts and opinions about my client ending up in his car half in and half out of the hospital plate glass window would be privileged unless and until I made those thoughts or opinions public as part of my client’s case. Included is any discussion of how or why my client told me he was found in his car, half in and half out of the hospital.

Generally speaking (and hypotheticals aside), my job is to pursue civil remedies to obtain justice for my clients. The most effective way to do this is to take steps toward a jury trial. The right to a jury trial is the foundation of every settlement and verdict obtained. The Seventh Amendment to our Constitution is dishonored whenever the right to a jury trial is impaired or legislated out of existence.

The Seventh Amendment right to jury trial comes from the Magna Carta – the King’s deal to avoid violence with his subjects by guaranteeing certain rights, including the right to jury trial. Causing violence to property and persons is always counterproductive to pursuing a jury trial. But that assumes the existence of a meaningful right to a jury trial, as guaranteed by our natural rights under the Constitution.

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Early America adopted English common law and a long history of cherished rights, including the right to trial by jury – which dates back to 1215. In that year, Pope Innocent III issued an order validating a person’s right to a trial by peers. That same year, at Runnymede in England, King John was forced on a battlefield to sign Magna Carta – the ancient pact he made with English Barons, including a stipulation to man’s right to “the lawful judgment of his peers”. These are the events that first set rule of law above kings.

A kid gunned down a health insurance CEO as he walked a busy Manhattan sidewalk into a shareholder’s conference. In America, there’s a certain passion surrounding guns and the Second Amendment. The Surgeon General issued an advisory about an epidemic of gun violence and deaths resulting therefrom. U.S. Surgeon General Issues Advisory on the Public Health Crisis of Firearm Violence in the United States

Firearms are the leading cause of death for American children and adolescents. HHS Report on Firearm Violence in America

At the same time, Americans have lost respect for our justice system in record numbers according to Gallup. Trust in court system at record low: Gallup

There are many reasons for both of these trends. They aren’t all related. But here is what I propose. We need a movement similar to the #2A movement to promote jury trials, a right guaranteed by the Seventh Amendment to our Constitution. And we need to invest time and money into improving our court systems and their rules so they can demonstrate their importance to our system of governance.

Self-defense and a well-regulated militia should be a last resort. There wouldn’t be a need for violence if we took our jury trial rights as seriously as our gun rights. Project 7A is designed to start that process.

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Given recent events, I am going to work on that.

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Yahoo News provides an important reminder.

American Founders Knew: Right to Counsel Is Fundamental

The right to counsel is a core American principle pre-dating the establishment of American jurisprudence. Our founding fathers experienced the tyranny of a king whose decisions couldn’t be questioned and a justice system that employed the death penalty to eliminate his political opponents. To avoid such abuses of power, they established the right to a defense lawyer in the 1660s as one of the first checks on governmental power. This long standing right is essential to making sure everyone gets a fair trial.

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This refers to the common practice of monarchs, who, before traveling into a new place, would send a party ahead of them to make sure that the road—the way—was easily passable. This crew would open up difficult passages, level out the road, make sure that it was as straight as possible, and remove any impediments to smooth travel.

Being a trial lawyer means hard work preparing difficult roads to make them passable. Many days, I use the feeling of old folk and country music that pulls on these threads to make sense of things. In America, many highways’ designed paths challenge already disadvantaged communities. When I was young, I lived east of Interstate 95’s designated route that cut in half Miami’s Overtown neighborhood. I never knew the history behind decisions like that until later. But as a boy, I remember exploring the giant sand mountains used to erect the busy road down Florida’s Gold Coast. A decade later, 95 was my work commute – more of a twenty-four-hour death rally than a road. There are construction delays and distractions on the Low Highway. The route is often dark and dangerous.

On the low highway
Windows down
Listening
Wheels turning round
On the asphalt saying
Every sound
Is a prophecy
Heard an old man grumble and a young girl cry
Brick wall crumble and the white dove fly
And a cry for justice and a call for peace
Force of reason in the roar of the beast
And every mile is a prayer I prayed
As I roll down
The low highway

Steve Earle, The Low Highway

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These kinds of verdicts are awarded against defendants with both good and bad reputations. Each case is determined on its own merits. Which is how it should be. A child with devastating cerebral palsy or an adult on life support shouldn’t be shortchanged just because a lobbyists persuaded a legislature to pass “tort reform”.

Here is an example of a trusted institution in a community being found responsible in such a case. That is a jury doing its job.

Baltimore Jury Awards Record $229 Million in Johns Hopkins Malpractice Case

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For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice: for though the sentence be just, yet the Judges that condemn without hearing the proofs offered are unjust judges and their presumption is but prejudice…In like manner, in ordinary trials of right, twelve men of the common people are the judges and give sentence not only of the fact but of the right…but because they are not supposed to know of the law themselves, there is one that has authority to inform them of it in the particular case they are to judge.

Leviathan, Thomas Hobbes, 1651

Here is the link to my original post from 2016,

What Is A Jury Trial (No. 2)?

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Early in the jury system, an accused was required to consent to be tried by a jury. However, the choice was illusory. Coercive methods were used including the loading of heavy stones on the accused’s chest. Since the consequence of a guilty verdict was the confiscation of all the accused’s property, some chose to die rather than be tried by a jury. If there was no trial, there was no forfeiture, and the estate would be passed on to the accused’s heirs.

My first series of posts here were about jury trial rights in America. In Number One, I covered the English history we share with Canada, including the profound change wrought by Magna Carta. America took this change one step further after its founding.

A Federal Bill of Rights didn’t come until after the Constitution was written (the bitter Ratification Convention of 1887-88), when Congress approved the first ten Amendments in 1789. The Seventh Amendment to the United States Constitution guarantees the right to trial by jury.

“When the English adopted trial by jury, they were a semi barbarous people; they have since become one of the most enlightened nations on earth, and their attachment to this institution seems to have increased with their increasing cultivation. They have emigrated and colonized every part of the habitable globe; some have formed colonies, others independent states, the mother country has maintained its monarchical constitution; many of its offspring have founded powerful republics; but everywhere they have boasted of the privilege of trial by jury. They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which thus obtains suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of government, cannot be contrary to the spirit of justice.”

            Alexis de Tocqueville, Democracy in America, Page 281.

The link to the modern take on Canadian jury trials is here. The link to my post on American jury trial rights is here.

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Andrew Vernick, who represented the radiology company, said Tuesday that he expects the judgment (based upon a $2.4M verdict) would be reduced to $800,000 for pain and suffering, plus about $140,000 for medical bills, due to a cap in Maryland.

I wonder what would happen if a state came for citizens’ guns the way they come for our right to a verdict? The link to the story on the recent Baltimore medical malpractice jury verdict is here:

Jury awards Baltimore County woman $2.4 million after GBMC surgery failed to remove breast cancer tumor

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