Birmingham, Alabama


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Jon Lewis
Jon Lewis
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You Want a Jury in your Case? SORRY!

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The 7th Amendment of the United States Constitution provides:

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.

But, this Amendment has been gutted by our legislatures.  How?  By the passage of workers compensation laws, the Employee Retirement Income and Security Act (ERISA), the Federal Tort Claims Act (FTCA), and the Federal Arbitration Act.  In all of these cases, the citizens of Alabama CANNOT get a jury trial.

The Alabama Workers Compensation Act provides:

Section 25-5-81

Determination of disputed compensation claims generally.

(a) Commencement of action in circuit court.

(1) PROCEDURE. In case of a dispute between employer and employee or between the dependents of a deceased employee and the employer with respect to the right to compensation under this article and Article 2 of this chapter, or the amount thereof, either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil action in tort between the parties. The controversy shall be heard and determined by the judge who would hear and determine a civil action between the same parties arising out of tort, and, in case there is more than one judge of the court, the controversies shall be set and assigned for hearing under the same rules and statutes that civil actions in tort are set and assigned. The court may hear and determine the controversies in a summary manner. The decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal provided for in this article.

The ERISA statutory provisions do not expressly prohibit jury trials, but the 11th Circuit, and all other Circuits, have held:

The “remedies available to a participant or beneficiary under ERISA are equitable in nature and the Seventh Amendment does not require that a jury trial be afforded for claims made by participants or beneficiaries.”

The FTCA provides:

28 U.S. Code § 2402 – Jury trial in actions against United States

Subject to chapter 179 of this title, any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a)(1) shall, at the request of either party to such action, be tried by the court with a jury.

(June 25, 1948, ch. 646, 62 Stat. 971; July 30, 1954, ch. 648, § 2(a), 68 Stat. 589; Pub. L. 104–331, § 3(b)(3), Oct. 26, 1996, 110 Stat. 4069.)
The Federal Arbitration Act provides:
9 U.S. Code § 2 – Validity, irrevocability, and enforcement of agreements to arbitrate

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

(July 30, 1947, ch. 392, 61 Stat. 670.)
This Federal Arbitration Act provision has been held to preempt Alabama laws which prohibit arbitration implicitly by the Alabama Constitution and explicitly by statute:  see below:
Text of Section 10:Right to Prosecute Civil Cause

That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.
Text of Section 11:Right to Trial by Jury

That the right of trial by jury shall remain inviolate.
Section 8-1-41

Obligations which cannot be specifically enforced.

The following obligations cannot be specifically enforced:

. . .(3) An agreement to submit a controversy to arbitration;

So, you want a jury?  We, at Lewis, Feldman & Lehane, LLC, recommend everyone contact their legislators and let them know you want a jury, not an appointed or elected Judge or an arbitrator.