For most of our history, lawyers have thought of themselves as the unofficial fourth "arm" of the government. This view is more understandable from lawyers' past role as "trial advocates" than from the present relationship between the bench and bar, which reduces the significance lawyers have in the administration of justice.

Under the law in effect in most colonies at the time our Constitution was written, lawyers were advocates who had the right to argue the merits of their clients' cases directly to a jury. Juries, not judges, had the right to decide most cases as they saw fit both with regard to the facts and the law. As the Supreme Court noted in 1943's Galloway V. United States: "In 1789, juries occupied the principal place in the administration of justice. They were frequently in both criminal and civil cases the arbiters not only of fact but of law."

The king's denial of the right to a trial by jury was one of the reasons justifying separation from England in the Declaration of Independence.

Many believed the right to a jury trial was not adequately guaranteed in Article III, Section 2 of the Constitution. Anti-federalists urged rejection of the Constitution unless it was amended to include a Bill of Rights, which secured the right to trial by jury in both criminal and civil cases. Patrick Henry, a lawyer and well-known patriot at that time, argued: "Trial by jury is the best appendage of freedom. ... No appeal can now be made as to fact in common-law suits. The unanimous verdict of impartial men cannot be reversed." This result was not because the jury would always be right, but because the result came from impartial members of the community.

Significantly, our constitutional history shows jury trials were intended to be a structural check on the power of the judicial branch to resolve disputes involving citizens' liberties and properties. In this regard, Thomas Jefferson wrote: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Over the years, judges appeared to forget (or decided to ignore) the fact that trials decided by a jury - rather than the sovereign's judges - were a constitutional mechanism intended to keep the administration of law by the judicial department consistent with the wishes and feelings of the community. The framers of our Constitution contemplated that juries could reach a result that a judge could or might not decide. As Charles W. Wolfram wrote, juries were there to provide "protection for litigants in general, and for debtors in particular ... ."

By the mid-20th Century, the right to a trial by jury was under continual attack by judges. In 1943, Justice Hugo Black, joined by Justices William O. Douglas and Frank Murphy, complained in their dissent in Galloway that the "gradual process of judicial erosion ... has slowly worn away a major portion of the essential guarantee of the Seventh Amendment."

A little more than three decades later, Justice William Rehnquist - dissenting in Parklane Hosiery Co. V. Shore - echoed these same words, quoting Black. Rehnquist, who was not known for being a liberal justice, questioned whether the right to a jury trial had been gutted to the extent it no longer provided a constitutional check on the power of the judicial branch of government.

The majority in Parklane was not moved, as it unabashedly observed that it frequently engaged in rule-making that interfered with access to jury trials: "[M]any procedural devices developed since 1791 that have diminished the civil jury's historic domain have been found not to be inconsistent with the Seventh Amendment." It cited cases deciding that a "directed verdict does not violate the Seventh Amendment," that a "retrial limited to question of damages does not violate the Seventh Amendment even though there was no practice at common law for setting aside a verdict in part," and that "summary judgment does not violate the Seventh Amendment."

Early on in this century, the Supreme Court continued to wage war against the constitution's guarantee to a jury trial in civil cases. In Bell Atlantic Corp. V. Twombly and Ashcroft V. Iqbal, the Supreme Court held that trials (jury or not) were not necessary where a federal judge did not find the allegations of a plaintiff's complaint "plausible." The word "plausible" is problematic to some because it implies a "judge-centric" subjective standard, as opposed to the more objective one it replaced.

The Supreme Court's grant of pretty much unfettered discretion to federal judges to dismiss cases based on each judge's belief that a complaint is not "plausible" has been heavily criticized by some state supreme courts and academic commentators. For example, Stephen B. Burbank and Stephen N. Subrin, in an article titled "Litigation & Democracy: Restoring a Realistic Prospect of Trial," criticize the new "plausibility" standard not only because it is not consistent with the Seventh Amendment, but also because the Supreme Court changed the "motion to dismiss procedure" by judicially interpreting the rule.

By claiming to merely interpret the meaning of Federal Rule of Procedure 12(b)(6) - which, if true, would have violated the principle of stare decisis - the Supreme Court bypassed the rule-making process. By doing so, a majority of the court bypassed any notice and comment to the bar with regard to this change in procedure. More importantly, the court deprived Congress of the opportunity to review - and, if necessary, to block - any prospective policy choices before the rule became effective.

Iqbal/Twombley announces to the bar, as well as Congress, that this Supreme Court will not be deterred by those constitutional checks our framers intended to deter abuses by the judicial department. This disdain by the court has been felt most acutely today by the poor and the middle and upper-middle classes, which do not have the resources to litigate or resist litigation.

In 2011, the Federal Judicial Center commissioned a report to determine the effect of Iqbal/Twombley on dismissals. With regard to borrowers and homeowners, the effects of these decisions appeared devastating. More than 91 percent of complaints dealing with financial instruments were dismissed based on the "plausibility" standard. Significantly, this percentage includes only those complaints filed by lawyers. If pro se complaints are factored in (and there would have been a lot of them), federal judges likely would have dismissed close to 100 percent of borrowers'/homeowners' complaints against the lending industry based on Iqbal's "plausibility" standard. Such a high dismissal rate seems implausible itself given the plethora of studies and settlements, which substantiate that most county land filings are wrong and, in many cases, illegal. (See, for example, "Foreclosure in California: A Crisis in Compliance.")

It is difficult for most of us (lawyer and layperson alike) to understand why the rest of the world knows of lender/servicer illegal misconduct (by way of congressional investigations, case settlements, and anecdotal reports) while federal judges still do not believe complaints by borrowers and homeowners alleging this same documented conduct are plausible.

Those few cases that have been tried before a jury suggest that, unlike judges, juries would have no trouble finding lender/servicer conduct actionable and awarding large damages to injured homeowners.

Of course, there will be those who attribute these large verdicts to juror fallibility, but more likely they reflect deep public outrage. It is these types of verdicts that our founders foresaw would prevent this type of crisis from occurring. While the rich may have undue influence over public officials and judges, their influence over a jury will be determined by the facts presented to these impartial people.

Our founders were smart. In hindsight, they seem a lot sharper than those judges who have tried so hard to avoid the common sense of the average American. Had there been a likelihood in 2008 that most cases of this type would be tried to a jury, with the possibility of multi-million-dollar verdicts against the lenders, this crisis would have been over before it began. Instead, we now have the next wave of vultures purchasing toxic debt that they expect the courts to enforce to the detriment of society.

The Constitution contemplated that jurors might make mistakes, and that such mistakes would accrue to the common good. This, of course, would have been the case if the devastation of American communities had been avoided by judges following the Constitution and allowing citizens their right to a trial before a jury of their peers in civil cases.

Scott E. Stafne is an attorney with Stafne Trumbull, PLLC. This article originally appeared at

Support the River Cities' Reader

Get 12 Reader issues mailed monthly for $48/year.

Old School Subscription for Your Support

Get the printed Reader edition mailed to you (or anyone you want) first-class for 12 months for $48.
$24 goes to postage and handling, $24 goes to keeping the doors open!

Click this link to Old School Subscribe now.

Help Keep the Reader Alive and Free Since '93!


"We're the River Cities' Reader, and we've kept the Quad Cities' only independently owned newspaper alive and free since 1993.

So please help the Reader keep going with your one-time, monthly, or annual support. With your financial support the Reader can continue providing uncensored, non-scripted, and independent journalism alongside the Quad Cities' area's most comprehensive cultural coverage." - Todd McGreevy, Publisher