When it exists, how it is preserved, and how it is waived.
Esshaki Legal Media TeamCurrent as of August 2024
The right to a civil jury attaches to claims at law and not to claims in equity,
a distinction drawn from historical practice.
The test. Compare the action to eighteenth century actions in the English
courts, then examine the remedy sought — the more important inquiry. Damages are
legal; injunctions, specific performance, rescission, accounting and restitution
in equity are not.
Mixed claims. Where legal and equitable claims share common issues, the
legal issues are generally tried to the jury first, and the court’s later
findings on the equitable claims must respect the jury’s determinations.
Statutory claims. Whether a jury right attaches depends on whether the
statute creates rights analogous to common law actions and provides legal
remedies.
Demand. A written demand within a short period after the last pleading
directed to the issue, or the right is waived. This deadline is missed
regularly.
Contractual waiver. Enforceable in most jurisdictions where knowing and
voluntary, assessed by conspicuousness, negotiation and sophistication.
Prohibited by statute in a few states, where arbitration is the alternative.
Strategic considerations. Complexity, sympathy, the identity of the parties,
and the venue’s jury pool.