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INSIGHT: Five Suggestions for Drafting (and Defending) Pre-Dispute Contractual Jury Waivers

Oct. 9, 2019, 8:00 AM

Litigation is a cost of business, but many savvy in-house counsel effectively manage that cost by including pre-dispute jury waivers in counterparty contracts. For the uninitiated, jury waivers memorialize an agreement between contracting parties that fact-finding in disputes arising between them will be decided by judges, and not by juries.

Here are five suggestions to ensure that such waivers will be enforced, and litigation fact-finding handled by judges, not juries.

1. Be Careful What You Wish for. Corporations often reflexively shy away from juries, viewing the prospect of bench trial as vastly more palatable than trial by jury. There may be wisdom to this approach (and usually is), but anti-jury bias warrants careful scrutiny before pre-dispute jury waivers are drafted.

Is your client more likely to sue or be sued? Does your client and/or its industry have a sterling reputation in the community (relative to likely adversaries) or something less? Will litigation involve sympathetic or unsympathetic counterparties? Will likely litigation fora be hospitable? How do you rate likely jury pools? Are the judges elected or appointed?

Apart from these threshold questions, consider fact patterns that could emerge in litigation. For example: You just lost a summary judgment motion (as a defendant) in a 70-page opinion that savages your key legal and factual defenses. The judge who ruled against you ends her opinion with an ominous line scheduling a bench trial for the following month. How’s that jury waiver looking now?

Pre-dispute jury waivers are valuable tools to manage litigation risk, but they may not always make sense. Juries can reach the right result in complicated financial cases, and judges can decide credibility disputes wrongly. On balance, conventional wisdom suggests that risk-averse defendants are usually in safer hands with judicial fact-finding, especially to avoid the tail risk of punitive damages. The remainder of this note proceeds on that assumption. But remember that it is only an assumption, and that one size does not necessarily fit all.

2. Be Conspicuous. The right to trial by jury is enshrined in the Seventh Amendment to the U.S. Constitution (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”)

Jury rights are generally subject to waiver (Georgia and California being significant exceptions), but courts are more likely to enforce pre-dispute jury waivers if the terms are emphasized in large, capitalized and bold-faced (and/or italicized) typeface highlighting the waiver.

Depending on the nature of the contract, it may be advisable to include the waiver on the signature page or require a separate assent by signature or initials to the waiver to dramatize the counterparty’s express consent, although case law does not require such steps before giving effect to otherwise conspicuous waivers.

3. Be Specific. Given the constitutional provenance of jury rights, waivers are typically enforced strictly according to their terms. A well-drafted waiver might provide for the contracting parties to “voluntarily and intentionally waive the right to a trial by jury in any action or proceeding in any way relating to, in connection with or arising out of this Agreement and/or any of the transactions contemplated by the parties, and shall apply to any such action or proceeding, whether sounding in contract, tort or otherwise.”

Exclusion of these terms invites parsimonious interpretations seeking, for example, to limit the scope of a waiver to claimed contractual violations, while excluding related common-law claims (e.g., breach of fair dealing claims). A well-drafted waiver might also include an acknowledgment that the parties received the advice of competent counsel prior to execution.

4. Don’t Be Greedy. Cases assessing jury waivers often address the parties’ relative bargaining power, and manifestly gross inequities in bargaining power could jeopardize otherwise valid jury waivers. A non-reciprocal jury waiver divesting a counterparty’s jury rights but leaving your client’s right to a jury trial unaffected would invite judicial scrutiny into whether the jury waiver was truly a product of arms-length bargaining or an unenforceable contract of adhesion.

Similarly, if a corporation based in Georgia or California (where pre-dispute jury waivers are generally unenforceable) chose New York law (which, like most states, allows pre-dispute waivers) to govern a purely local dispute without any reasonable basis, it would likewise invite claims of overreach.

Finally, while courts often enforce jury waivers in fraudulent inducement cases, jury waivers in cases where the very existence of a foundational contract is disputed (e.g., forgery or other claims attacking contract validity) are far less likely to be credited, and jury waivers purporting to apply in such cases are likely counterproductive.

5. Don’t Be Tardy. Motions to strike jury demands in federal court are governed by Rule 39(a)(2) of the Federal Rules of Civil Procedure, which contains no express time limitation. That said, parties seeking to enforce pre-dispute jury waivers should include the requested relief in responsive pleadings and not unduly delay necessary motion practice to avoid risks of waiving the waiver.

Timing is generally governed by a rule of reason, and there is no specific deadline for moving to strike a jury demand. Accordingly, if a defense lawyer wants to develop the facts of his case through discovery and test those facts on a mock jury before deciding to make a Rule 39(a)(2) motion, there is usually time to do so. On the other hand, courts will not enforce jury waivers that are not timely asserted. See, e.g., Team Contractors LLC v. Waypoint NOLA LLC (E.D. La., April 8, 2019) (denying as untimely Rule 39(a) motion filed 12 days before retrial after case had previously been tried to jury, and then ordered for retrial).

While it seems obvious, parties seeking to enforce jury waivers should also avoid asserting their own jury demand, as any such assertion could operate as a waiver of the contractual provision and/or trigger litigation under FRCP 39(a)(1), which precludes the withdrawal of a jury demand absent consent.

Summary

Pre-dispute jury waivers offer in-house counsel a valuable tool to manage litigation risk. If your client will benefit from a pre-dispute contractual jury waiver, delineate the terms specifically and conspicuously—and without overreaching—and make sure that you and/or outside counsel moves to enforce the provision diligently and without waiver.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

David L. Goldberg is a partner in Katten’s Litigation practice where he helps financial institutions in high-stakes, complex litigation and enforcement matters. He previously served with distinction as an AUSA in the U.S. Attorney’s Office for the Eastern District of New York, where he received the John Marshall Award.

Sean M. Akchin is an associate in Katten’s Litigation practice where he works on a wide variety of lawsuits and legal matters representing bankrupt corporations, criminal defendants and fraud victims.