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One on the Bench or Twelve in the Box: Strategic Considerations in Requesting a Jury

Modern litigation is a game of inches. It is increasingly rare that cases are won or lost based with a single piece of evidence, or the ruling on one motion. Instead, the parties spend months, or even years, engaging in a series of small skirmishes over jurisdiction, venue, choice of law, discovery, and procedure, seeking to secure enough small advantages to tip the scales in their favor.

One of these small strategic considerations is whether or not to request a jury trial. In this country, the Constitution guarantees the right to a trial by jury, so if a party requests a jury, their request will nearly always be granted, thus the decision can be taken out of your hands. In other situations, however, your opponent may forgo a jury, and the decision will fall to you.

The commonly accepted maxim is that juries are good for plaintiffs and bad for defendants. This is an obvious oversimplification, especially in commercial cases. Some judges are plaintiff friendly. Some jury pools are overwhelmingly conservative and skeptical of runaway tort verdicts. Some plaintiffs are unsympathetic, and some defendants find themselves with the emotive advantage. If your best argument involves complicated legal concepts, you may be better off with a judge regardless of which side of the “v” you find yourself. Jury trials are also invariably more expensive than bench trials, therefore the relative resources of the parties may also enter into the calculus.

As this brief discussion makes evident, there are very few hard and fast rules when it comes to whether or not to request a jury. You should analyze from as many angles as possible, taking into account the particular facts and circumstances of your case. And while it is unlikely to be the sole decision that wins or loses your case, it just might be the one small advantage that that tips the scales in your favor.

Adam Looney

Phone:281-367-1222

Fax: 281-210-1361

[email protected]

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