CIVIL JURY TRIALS IN FEDERAL COURT The decision between a jury trial and a bench trial in federal civil litigation can have significant implications for the procedure, timing, and outcome of a case. Although bench trials have certain perceived advantages over jury trials, such as greater efficiency, there are various reasons why parties might want a jury trial if it is available. Counsel expecting to resolve a dispute at trial should carefully examine the unique procedural and practical features of jury trials and how jury trials may be preferable to bench trials. 26 June/July 2019 | Practical Law © 2019 Thomson Reuters. All rights reserved. HAROLD P. NORMAN C. SIMON SAMANTHA V. ETTARI WEINBERGER PARTNER SPECIAL COUNSEL AND PARTNER KRAMER LEVIN NAFTALIS & E-DISCOVERY COUNSEL KRAMER LEVIN NAFTALIS & FRANKEL LLP KRAMER LEVIN NAFTALIS & FRANKEL LLP FRANKEL LLP Norm maintains a diverse Harold represents plaintiffs litigation practice with a Samantha maintains a and defendants in false focus on advertising law diverse litigation practice advertising disputes under the federal Lanham and is co-chair of the firm’s Advertising Litigation with an emphasis on advertising litigation, Act and is co-chair of the firm’s Advertising group. He represents global brands in false contract and licensing disputes, business tort Litigation group. He also represents clients advertising disputes under the federal Lanham litigation, securities and regulatory defense, in other complex intellectual property and Act and class actions brought pursuant to and bankruptcy litigation. She also serves as commercial litigations and arbitrations, class consumer fraud statutes, as well as in challenges the firm’s e-discovery counsel, guiding clients actions brought pursuant to consumer fraud before the NAD and the NARB. Norm’s other through their obligations in the rapidly evolving statutes, proceedings before the National commercial litigation experience is broad and areas of electronic discovery, privacy, and Advertising Division (NAD) of the Council of includes employment, contract, licensing, and cybersecurity. Better Business Bureaus, and appeals before the intellectual property disputes. National Advertising Review Board (NARB). Arthimedes/Shutterstock the-lightwriter /iStock photo © 2019 Thomson Reuters. All rights reserved. The Journal | Litigation | June/July 2019 27 here may be nothing more exciting in the practice of law second prong be given more weight than the first); Hard Candy, than presenting a trial-ready case to a jury. But whether LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343, 1348, 1353-57 to present the ultimate resolution of a civil dispute to (11th Cir. 2019) (rejecting the plaintiff’s argument that a claim is a laypersons is a complex decision that counsel usually legal one where a plaintiff seeks to recover a defendant’s profits Tmust make early in litigation, often before fully identifying all of as a “proxy” for actual damages, and noting that the remedy the facts, witnesses, defenses, and themes in the case. Although of an accounting and disgorgement of profits has long been discovery and pretrial dispositive motions may not differ greatly considered equitable in nature).) for matters tried to a jury or a judge, the differences between jury trials and bench (non-jury) trials are numerous once the Courts frequently favor a jury trial when these two prongs are parties begin pretrial preparation. Moreover, choosing a jury trial in tension (see, for example, SFF-TIR, LLC v. Stephenson, 262 instead of a bench trial can significantly impact the procedure F. Supp. 3d 1165, 1234-37 (N.D. Okla. 2017) (holding that the and outcome of a litigation. defendants were entitled to a jury trial where the plaintiffs’ breach of fiduciary claims sounded in equity under the first Despite a trend among litigants towards an increased use of prong, but the remedies sought were legal in nature); Flex Fin. bench trials because of their perceived efficiencies, jury trials Holding Co. v. OneBeacon Ins. Grp. LLC (In Re Flex Fin. Holding may be preferable in many instances. This article explores key Co.), 2015 WL 1756819, at *1-3 (Bankr. D. Kan. Apr. 13, 2015) issues counsel should consider when deciding whether to take a (holding that the defendants were entitled to a jury trial where civil dispute to a jury and when navigating a jury trial, including: they framed an issue about construction of a written contract The circumstances in which a jury trial is available. as declaratory but sought damages), aff’d on reconsideration, 2015 WL 3638007 (Bankr. D. Kan. June 9, 2015); Sedghi v. The potential advantages of a jury trial over a bench trial. PatchLink Corp., 823 F. Supp. 2d 298, 305-07 (D. Md. 2011) The unique procedural and practical aspects of a jury trial as (holding that the plaintiffs were entitled to a jury trial where a compared to a bench trial. promissory estoppel claim sounded in both equity and law, but The role of post-trial motions in a jury trial. the “benefit-of-the-bargain” damages sought were a “classic The standard of review for appeals of a jury verdict. form of legal relief”) (citations omitted)). In cases involving both legal and equitable claims, a jury may Search Bench Trials in Federal Court for more on federal decide the legal claims and the court may decide the equitable non-jury trials. claims (see Goettsch v. Goettsch, 29 F. Supp. 3d 1231, 1243 (N.D. Iowa 2014) (holding that the jury would decide the plaintiffs’ breach of fiduciary duty claim and the court would decide the AVAILABILITY OF A JURY TRIAL equitable claim of judicial dissolution, and to the extent there At the outset, counsel considering whether to proceed with a were common issues in the two claims, the court would decide jury trial must determine whether a right to a jury trial exists and the equitable claim drawing from the jury’s conclusions on the ensure that the parties properly demand a jury trial. breach of fiduciary duty claim)). RIGHT TO A JURY TRIAL JURY DEMAND The Seventh Amendment of the US Constitution provides the Even where the right to a jury trial exists, a party typically must right to a federal jury trial. Although that right is sacrosanct demand a jury trial before one may occur. Rule 38 of the Federal in criminal cases, a jury trial is not always available in civil Rules of Civil Procedure (FRCP) permits a jury trial on some or litigation. However, because federal policy favors a jury trial on all factual issues triable to a jury, but only if a party both: issues of fact, a jury trial typically will occur if any party wants Serves the other parties with a written demand for a jury and is entitled to it based on the nature of the claims. trial no later than 14 days after service of the last pleading “directed to the issue” for which a jury trial is sought. Certain cases may require a bench trial, particularly those involving equitable claims for which no right to a jury exists. In Properly files the written demand under FRCP 5(d). some situations, it may be unclear if claims sound in equity. In Parties often include a jury demand in the complaint or answer these cases, district courts typically conduct a two-pronged test (FRCP 38(b)(1) (stating that a demand “may be included in a to evaluate whether: pleading”)). The written demand may identify all or a subset of The claims were historically within the jurisdiction of issues to be tried by a jury. However, if a party has specified only English law or equity courts in 1791 (the year of the Seventh certain issues in its jury demand, any other party may demand Amendment’s ratification). a jury trial on any remaining issues (if a jury trial is available for The remedies that the plaintiffs seek are equitable or legal those issues) within either: in nature. (Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989) (describing the two-pronged test and instructing that the 28 June/July 2019 | Practical Law © 2019 Thomson Reuters. All rights reserved. 14 days of service of the demand. Additionally, no proposed findings of fact or conclusions of law A shorter time that the court orders. are necessary in jury trials, whereas many courts require these submissions in bench trials both before trial and again in an Courts must construe a general demand that does not specify updated form at the end of trial to account for the evidence the claims for which a party is seeking a jury trial to cover all received. These submissions can range from dozens to hundreds issues triable by the jury. (FRCP 38(c).) of pages in complex cases and represent significant costs. If a party does not properly and timely serve and file a jury SPEED demand, the party waives the right to a jury trial (FCRP 38(d)). However, a party may file a motion for a jury trial later in the The speed within which a jury returns a verdict is nearly always case if the party could have demanded a jury trial at the faster than the time it takes for the court to issue a decision FRCP 38 deadline (FRCP 39(b)). The court has discretion to in a bench trial. Following bench trials, parties frequently grant or deny this motion (Winter Enters., LLC v. W. Bend Mut. Ins. marshal the evidence and arguments in post-trial submissions, Co., 2018 WL 1522119, at *5-6 (S.D. Ohio Mar. 28, 2018); see also, a process that may stretch weeks or even months after the trial for example, Fid. & Deposit Co. of Md. v. A-MAC Sales & Builders concludes. By contrast, when evidence is presented to a jury, the Co., 2006 WL 3802180, at *1-3 (E.D.