The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.
One of the first duties of government is to afford that protection.
- Chief Justice Marshall, Marbury v. Madison (1803)
Most everybody is familiar with the Bill of Rights and the privileges and benefits that it grants to all Americans.
However, few people are aware that each state has its own constitution with provisions that not only duplicate, but often exceed, the rights guaranteed under the federal constitution.
In the face of a relentless attack on our civil justice system in the federal and state legislatures, it may be that our best hope for fighting back is reliance on the provisions in our states, constitutions. Unlike the federal constitution, almost forty state constitutions include articles stating an explicit right of access to justice/access to the courts.
In response to tort reform efforts to put restrictive caps on the amount that those suing can recover for their injuries, some lawyers have invoked access to justice articles to invalidate these caps as incompatible with their state's constitution.
For example, the right of access to the courts has been successfully used in litigation to invalidate restrictive anti-civil justice legislation in Arizona (1986), Florida (1987), Kentucky (1998), Louisiana (1999), New Hampshire (1999), Texas (1988).
The same is true with the right to trial by jury provisions of state constitutions. All states (except Colorado and Louisiana) have the right to jury in their constitution (indeed - you should know that the federal right to trial by jury does not extend to oblige the states as do the other rights under the Bill of Rights - and so you absolutely must rely on these state constitutions for your right to trial by jury).
The state constitutional right to a jury trial has been successfully used to strike down anti-civil justice legislation in Alabama (1991), Kentucky (1998), Ohio (1999), Oregon (1999), Washington (1989).
In the public policy back-and-fourth between the different camps of the debate around the civil justice system, it is easy to lose sight of the fact that you have an explicit right to access this system based on often overlooked state constitutional provisions.
Maybe the trial bar (plaintiff attorneys) is right about the pubic policy implications of the civil justice system, maybe the defense bar (corporate defense attorneys) is right about some things about the civil justice system - but it doesn't really matter. You have a right to access the courts, period point blank (well - unless you live in one of the few states without one).