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In a criminal case, per Rule 23, either party may demand a jury trial (and the defendant usually does).

A civil case, however, is often decided by a "bench" (judge) trial. Under what circumstances is a civil case likely to go to a jury trial, and under what circumstances can a party either demand, or prevent a jury trial (aside from a contract where both parties waive their rights to a jury trial)?

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    Not all US jurisdictions allow either party to demand a jury trial in a criminal case. While the 6th Amendment means the defendant has a right to trial by jury, some states let the defendant opt for a bench trial over the objections of the prosecution. – cpast Mar 21 '17 at 1:45
  • @cpast: I was under the impression that a bench trial was always available (at least initially, before jury selection) at the defendant's option. Can you point me to states that do not allow a defendant to opt for a bench trial? – sharur Mar 22 '17 at 1:01
  • @sharur Federal courts require government consent (as well as court approval) to waive a jury if the defendant is entitled to one. So do Texas, Arizona, South Carolina, and others. In some cases the government's consent is only needed in felonies; also, in some states (like Texas) a jury trial cannot be waived if the prosecution is seeking the death penalty. – cpast Mar 22 '17 at 3:03
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A civil case, however, is often decided by a "bench" (judge) trial. Under what circumstances is a civil case likely to go to a jury trial, and under what circumstances can a party either demand, or prevent a jury trial (aside from a contract where both parties waive their rights to a jury trial)?

In federal court, there is a right to a jury trial in cases where the complaint is predominantly based on a "legal" as opposed to an "equitable" theory (roughly speaking claims for money damages v. claims for injunctive relief, but actually based upon historical practice in 18th century England with some select historical exceptions), if the plaintiff demands one with the filing of the Complaint and pays a jury fee, or if the defendant demands one with or shortly after filing an Answer and pays a jury fee, under the 7th Amendment to the United States Constitution and related civil procedure rules.

Pre- and post-dispute contractual waivers of the right to a jury trial are allowed in most matters (although jury waivers are not allowed for a few kinds of statutory claims)1, and of course, one could also waive not just the right to a civil jury trial, but also a right to court system based dispute resolution with a valid arbitration clause. Many kinds of contracts like promissory notes and written leases, routinely include a jury trial waiver. Other kinds of contracts (e.g. cell phone contracts, bank customer agreements, and securities broker engagement agreements) routinely contain arbitration clauses.

1 The states of California and Georgia are exceptions to the general rule that contractual pre-dispute jury trial waivers are valid.

A non-exclusive list of common cases where there is a right to a jury trial (in the absence of a contractual waiver of this right) include:

  • Breach of contract
  • Damages claims for breach of a lease
  • Common law tort claims such as negligence, nuisance, defamation and fraud
  • Civil rights and discrimination claims seeking money damages
  • Patent and copyright infringement cases seeking money damages
  • Non-preliminary claims to recover tangible personal property
  • Will contests
  • Termination of parental rights
  • Eminent domain just compensation hearings

A non-exclusive list of common cases where there is not a right to a jury trial include:

  • Foreclosure of liens and mortgages
  • Receiverships
  • Core bankruptcy matters (but PI claims in bankruptcy get a jury trial)
  • Dissolution of marriage, legal separation and annulments
  • Child custody
  • Adoption and paternity actions
  • Change of name petitions
  • Municipal or special district incorporation or annexation petitions
  • Probate matters other than will contests (e.g. guardianship and custodianship and trust cases).
  • Claims to reform written instruments
  • Claims to invalidate contracts on equitable grounds (e.g. mistake)
  • Fraudulent transfer lawsuits (even if for money damages)
  • Disputes involving management of a corporation
  • Suits seeking principally injunctive relief other than recovery of tangible personal property
  • Quiet title cases involving real estate
  • Preliminary relief in the nature of eviction, attachment, or preliminary recovery of tangible personal property pending a determination on the merits
  • Juvenile delinquency cases
  • Hearings on the right to bring an eminent domain proceeding
  • Court of claims suits for money damages against a governmental entity
  • Suits seeking to declare a statute unconstitutional or invalid
  • Actions to invoke, assist, or enforce an arbitration clause
  • Election law disputes not predominantly seeking money damages
  • Partition cases (to divide or sell co-owned real estate)
  • Cases seeking an accounting (e.g. between partners in a partnership)
  • Tax refund lawsuits (Phillips v. Commissioner , 283 U.S. 589 (1931); Franchise Tax Bd. v. Superior Court, 2011 WL 2177248 (Cal., June 6, 2011)).

The nature of counterclaims asserted is irrelevant to the jury trial right in federal court.

But, in federal court, the case can be dismissed pursuant to a FRCP 12 motion to dismiss or for judgment on the pleadings (basically for jurisdictional reasons or for failure to state a plausible claim upon which relief can be granted), or can be resolved because all of the claims that give rise to the jury trial can be resolved as a matter of law based upon undisputed facts stated in affidavits under FRCP 56 (motion for summary judgment), or can be dismissed for failure to prosecute, or can be dismissed as a discovery sanction pursuant to FRCP 37, or can be dismissed due to a settlement reached by the parties pursuant to FRCP 41.

If a jury is properly demanded and is not dismissed before trial, then the case will proceed to a trial by jury, but the jury will decide only "legal" claims in the case while the judge will decide any "equitable" claims in the case, when there is a jury trial.

In most U.S. states and territories (other than Louisiana and Puerto Rico which have civil legal systems based upon the French and Spanish legal systems respectively), the right to a civil jury trial is essentially the same, but arises under a state constitution, a state law, or a state court rule, since the 7th Amendment does not apply to state court proceedings. But, jury trials are often prohibited is small claims court cases.

In actual practice, civil jury trials are quite rare (and have grown much more rare in both state and federal court over the last several decades).

About 75% of civil jury trials involve personal injury tort causes, civil rights cases, or fraud. There is a right to a jury trial in contract cases (although many contracts contain pre-dispute waivers of the right to a jury trial), but it is much less common for either party to demand a jury trial in a breach of contract case that does not involve fraud than it is in tort or civil rights cases are involved.

A jury is demanded is almost every case in which part of the damages sought include non-economic damages (e.g. pain and suffering, or emotional distress), or exemplary damages (i.e. punitive damages) are sought.

For example, here is a breakdown of bench and jury trials held in 2005 in Colorado in state and federal court combined based upon their respective annual reports (which is fairly typical although jury trials were slightly less common across the board in 2016):

Criminal and Quasi-Criminal Cases Infraction Final Hearings 8764

Traffic Trial To Court 187 (33%)

Misdemeanor Trial To Court 298 (31%)

Juvenile Trial To Court 281 (Delinquency and Parental Rights Terminations) (89%)

District Court Criminal Trial To Court 28 (Mostly Felonies) (3%)

Federal District Court Criminal Trial To Court 15* (41%)

Subtotal: 809 (excludes infractions) (29%)

Traffic Jury Trial 386

Misdemeanor Jury Trial 651

Juvenile Jury Trial 35 (Parental Rights Terminations)

District Court Criminal Jury Trial 857 (Mostly Felonies)

Federal District Court Criminal Jury Trial 22

Subtotal: 1,951

Criminal and quasi-criminal jury trials make up about 85% of all jury trials in Colorado.

Civil Cases

Civil Cases Small Claims Trial To Court 3,485 (100%)

County Court Civil Trial To Court 1,236 (99%)

District Court Civil Trial To Court 280 (50%)

Evidentiary Federal Magistrate Civil Hearings 9 (100%)

Evidentiary Federal Magistrate Prisoner's Case Hearings 7 (100%)

Federal District Court Civil Trial To Court 36* (46%)

Subtotal: 5,053 (94%)

County Court Civil Jury Trial 17

District Court Civil Jury Trial 277

Federal District Court Civil Jury Trial 43

Subtotal: 337

Civil jury trials make up about 15% of all jury trials in Colorado

In national statistics, about three-quarters of general jurisdiction state trial court jury trials are in personal injury cases. The available data makes it impossible to determine if this is true in Colorado, although there is no reason to think that Colorado is atypical in this regard.

If Colorado is typical, about 95% of jury trials in Colorado are for criminal, quasi-criminal or personal injury cases, while all other cases account for about 5% of jury trials.

  • Excludes 30 pre-trial evidentiary hearings and 7 evidentiary sentencing hearings.

** Excludes 36 evidentiary hearings in preliminary matters and motions, etc.

In Colorado, small claims cases are up to $7,500 and county court has a $15,000 jurisdictional threshold. There is no dollar limit on federal question cases in federal court but diversity cases in federal court must have $75,000 or more in controversy.

As the statistics above illustrate, a significant minority of criminal cases are tried in bench trials. About 3% of state felony trials are bench trials (the federal court data includes both bench trials in federal misdemeanor cases and bench trials in federal felony trials). About 30% of misdemeanor trials are bench trials rather than jury trials.

More than 95% of civil trials in both state and federal courts, and more than 95% federal criminal cases are resolved by default, dismissal on motion, voluntary dismissal, or settlement before trial. About 80%-90% of state criminal cases are plea bargained and therefore do not go to trial. Federal civil cases are proportionately more likely to go to a jury trial than state general jurisdiction court civil cases.

  • Nice answer! Only thing I would add is it's not possible to waive jury trial pre-dispute in some states at all, e.g., California (though litigation can be waived entirely). – DepressedDaniel Mar 21 '17 at 21:58
  • Good point. I added that with a reference. – ohwilleke Mar 22 '17 at 0:41

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