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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“He that would make his own liberty secure must guard even his enemy from oppression.”

Thomas Paine was an England-born political philosopher and writer who supported revolutionary causes in America and Europe. Published in 1776 to international acclaim, “Common Sense” was the first pamphlet to advocate American independence.

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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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But the author suggests the truth is essentially different. It isn’t important to see him as a player on either of those teams. Cash practiced what Foley calls the “politics of empathy”, the simple art of being able to see things from another person’s perspective. The stories of his family rising out of the Depression in Dyess, Arkansas are legendary: the journey from sharecropper to cotton farming landowners was back-breaking and set him on his course.

Trial lawyers tell the same kind of stories in court that Cash did in song. We ask jurors to put themselves in another’s shoes and do a little justice on the way.

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I accept reality and dare not question it.

Walt Whitman, The Bard of Democracy

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The sentence is weak. The weakness is deliberate. Madison couldn’t afford, on the one hand, to let the amendment seem to contradict the hard-won federal military power in the Constitution’s main body. He couldn’t afford, on the other hand, to underscore too strongly for the states’ comfort the overwhelming nature of that federal power.

The link to William Hogeland’s story from ten years ago is here.

Mr. Hogeland also wrote one of my favorite books about the Whiskey Rebellion. I have posted from that book and others about that episode in our history  here and here.

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