The Civil Jury Trial Is a Good Thing
When British Petroleum was building the Deepwater Horizon ultra deep-sea oil well, the oil well that caused the largest oil spill in history, BP cut corners. The engineering plans called for sixteen expensive stabilizers holding the main oil pipe in place. Without running any new engineering tests, BP decided to use only six stabilizers.
BP’s construction partner, Haliburton, was in charge of pouring the cement around the main pipe, and also responsible for testing the cement to make sure that it was the high-end construction quality needed for this specialized application. Haliburton tested the cement four times. The cement failed the first three tests.
Haliburton decided to use the cement it had on site, cement that had failed three quality tests, before the results of the fourth test came back. After the cement was poured, the fourth test failure results came back. BP, Haliburton, and others tried to save time and money which led directly to the oil spill.
The Deepwater Horizon oil spill was entirely avoidable. It was caused by negligent construction practices. The truth was only uncovered because of civil lawsuits against these companies. Lawsuits that settled before trial, but lawsuits that would have been decided by a jury of regular people.
If you owned a gulf coast shrimp boat and lost your business because of the oil spill, would you have wanted the government to tell you that you could not file a lawsuit? Or tell you that your lawsuit had to be decided by some politician who gets large donations from the oil industry instead of a jury? Or to limit your lost income damages to a small percentage of your actual loss? No, you would not.
The civil jury trial is a critical part of the American system of checks and balances. I know there are frivolous lawsuits filed all the time. I even write about them here in TLV (remember the lawyer suing Pop Tarts?). But the founding fathers were wise in their inclusion of the jury trial as a key part of the American government design.
If we presume that lobbyists and big business have infested Washington, then the jury trial is the only remaining thread of our governing fabric where the people still have the last word.
Never let them take the jury trial away from you.
One Fishy Old Case
Speaking of jury trials, back in the 1800s, fish oil was a hot commodity. Fish oil was used by everyone, from lamp oil to industrial lubrication, everyone needed their fish oil. Government has always wanted to get their share of a hot business, and New York State had a tax on fish oil.
One New York candle maker and oil merchant, Samuel Judd, decided not to pay his fish oil tax on a few barrels of whale oil. Judd said, whales are mammals, not fish, and I do not have to pay fish oil tax on mammal oil.
James Maurice, the state inspector that got paid out of the taxes he collected, filed a lawsuit, and in 1818 a court in Manhattan sat to answer the question: Are whales fish?
Judd’s case was supported by industry groups that stood to save a ton of money if whale oil was not subject to the fish oil tax. Maurice’s case was funded by the New York state government that stood to lose fat tax income. Both sides called dozens of witnesses, numerous scientists, and even a whale boat captain named “Preserved Fish.”
In the end, the jury decided that whale oil is fish oil and, logically, that whales are indeed fish.
Dominion Voting Systems v. Fox News
The next big media trial kicks off in Delaware this week as Fox News faces a $1.6 billion defamation lawsuit by Dominion Voting Systems. Dominion accuses Fox of destroying its reputation and business by repeatedly airing false claims that its voting machines were used to rig the election against Trump in favor of Biden.
Dominion cites numerous internal Fox communications and deposition testimony that Fox personnel knew that guests who appeared on various programs and repeatedly made the false claims on air did not have evidence to back up their allegations.
Fox’s defense relies heavily on the requirement in defamation cases that the plaintiff prove “actual malice,” which Fox says means that Dominion must prove that it aired the false claims for the purpose of hurting the defendant.
Fox says that it was not trying to hurt Dominion, it does not care about Dominion at all, rather, it was reporting on election-rigging claims being made by Trump’s lawyers. Fox says that these claims were inherently news-worthy, and Dominion just got caught in the crossfire.
Fox says that “actual malice” cannot be proven because it gave Dominion’s side of the story too by airing denials of the claims and it is impossible to do both.
The Judge has already ruled that the information aired by Fox was false and defamatory, which takes that information outside of First Amendment Free Press protection (the press has no freedom to publish false and defamatory material), leaving “actual malice” and the key remaining issue. You could pull up 100 Delaware court decisions and get 100 different definitions of “actual malice.”
Fox’s argument above uses a definition that favors the speaker/publisher. Dominion will argue that “actual malice” does not require that the speaker intended to hurt the person defamed, but, instead, “actual malice” means that the speaker simply did not care whether the person defamed was hurt. Dominion will argue that Fox recklessly disregarded the affect the false news stories would have on Dominion and that disregard is enough to be “actual malice.”
Whoever wins this trial, the case will be appealed and appealed and appealed and we will be sick of hearing about it if we are not already.
Mitchell Driskell practices law with the Tannehill Carmean firm and has been an Oxford lawyer for twenty two years. You can call him at 662.236.9996 and email him at mitchell@tannehillcarmean.com. He practices criminal law, civil law and family law.
