Is each party waiving its right to trial by jury?

Waiving a jury trial could offer a litigant one or more of several possible advantages: Jurors might be biased against certain categories of litigants. Trials can be quicker and less expensive without a jury. And a nonjury trial might be more effective if the trail will raise highly technical issues.

For purposes of trials in state court, courts in California and Georgia have held that pre-litigation waivers of jury trial are unenforceable. See Grafton Partners, L.P. v. Superior Court, 116 P.3d 479, 479 (Cal. 2005); Bank South, N.A. v. Howard, 444 S.E.2d 799, 799 (Ga. 1994).

In other states and under federal law, waivers of jury trial are enforceable. But that doesn’t mean a given waiver will necessarily be enforced. Under federal law, a jury waiver contained in a contract executed before litigation will be enforced if it was made “knowingly, voluntarily and intelligently.” Factors taken into account in determining whether that was the case include (1) whether the waiver was conspicuous, (2) whether the parties were sophisticated and experienced, (3) whether they had an opportunity to negotiate the terms of the contract containing the waiver, (4) their relative bargaining power, and (5) whether the parties were represented by counsel. Allyn v. Western United Life Assurance Company, 347 F. Supp. 2d 1246, 1252 (M.D. Fla. 2004).

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