The right to a jury in a civil case

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.