Concept
The Demand Requirement
Right to jury trial
The Demand Requirement
A jury right on an issue does not put a jury in the box by itself; a party must ask for one. Under Rule 38(b), a party may demand a jury trial on any issue triable of right by a jury by serving the other parties with a written demand, which may be included in a pleading, and by filing the demand in accordance with Rule 5(d). The demand is due no later than 14 days after the last pleading directed to the issue is served.1 Rule 38(d) states the cost of skipping that step: a party waives a jury trial unless its demand is properly served and filed.2
Two separate questions therefore decide whether a jury hears an issue. The first is whether the right exists. Actions for money damages in tort or contract are the familiar legal claims that carry it, while claims that were historically equitable, such as injunction and specific performance, generally do not.3 The second question, the subject of this section, is whether someone claimed the right in the way Rule 38 requires, and a yes to the first does not produce a yes to the second. In the federal system and in most states, the failure to demand a jury within the prescribed period waives the right, and the judge tries the case. A few state courts reverse the default and hold a jury trial unless a bench trial is requested.4
Placing the burden on the party who wants a jury gives the court an early answer to a scheduling question. A court that knows at an early stage whether an action requires a jury can schedule its cases accordingly and administer its caseload better.5 The rule also serves a systemic goal, because civil jury trial is a significant source of delay and a demand requirement contributes to reducing the average time it takes to adjudicate an action.6
The rule sits uneasily beside the treatment of other constitutional rights, which may be waived only by stipulation; the jury right, by contrast, is waived by inaction.7 Courts have nonetheless upheld demand requirements against constitutional challenge. They do not view a demand as unduly burdensome to the parties, so the rule's impact on the jury right is minimal, and that minimal effect is justified by the courts' need to exercise some docket control.8 The practical safeguard is to put the demand in the complaint or answer, which is permissible and wise, because a party who plans to make it separately may forget within the short period allowed and waive the jury by omission.9
On an exam, a stem that describes a plaintiff seeking money damages on a contract establishes only that a jury right exists. It does not establish that anyone claimed the right.
The buyer has little recourse. The court has discretion to allow an untimely demand, but it exercises that discretion sparingly, and in most instances it gives no relief from waiver.10
The waiver rule has a counterpart that protects the party who stays silent. A proper demand may be withdrawn only if the parties consent,11 a limit that protects the other parties who may have relied on it: once one party makes a general demand, the jury-trial rights of the other parties on all issues thus triable are secured without any further action by them.12 A party who is content with a jury on the issues the demand covers need not file one of its own, and a party who would prefer the judge cannot avoid the jury by staying silent. A later section takes up the limits of that protection.
Together these rules fix the mode of trial. If one party wants a jury and the others do not, the case is tried to a jury. If no party wants one, the parties waive jury trial by not requesting it, and the case is tried to the judge.13 The judge also tries the case when no right to a jury trial exists, the situation taken up in the last section of this chapter.14 The word "properly" in Rule 38(d) sets the agenda for what follows: a demand must be written, served, timely, and filed, and the next sections take up each requirement. Scope, withdrawal, and relief from waiver come after that.