The first thing that I do when a business owner presents me with a contract in a litigation matter is to look for that all important jury trial waiver provision.   When I see it, and it is most often at the very end of the contract, I breath a deep sigh of relief.   The Courts will enforce jury trial waivers which most business owners will happily invoke.   There are a myriad of reasons to avoid a jury trial if you are a business owner.   Here are just some of them.  

1.            Juries Can be Unpredictable.

     The reasons that juries are unpredictable is because people are unpredictable.   With a jury trial, you are asking to place your business life into the hands of complete strangers whom you have never met and whom you are only able to interview for a very short period of time prior to “selecting” these people to decide the  fate of your company.   There is no way to predict, with complete certainty, what a group of six people, who have never met one another, and who come from divergent backgrounds, will do after the presentation of evidence in you case.   Thus, it is normally a risk to place your case into the hands of a jury.

 2.            Jury Selection is an Obscure Science.

     If you are a litigator, you are often confronted with advertisements from “jury consultants” who claimed to have cracked the psychological code behind the selection of juries.   Their profession is not complete quackery.   Sometimes, jury consultants can be quite helpful.   They analyze the type of case you have, the background of potential jurors, and make efforts to predict how the jurors will react to the evidence.   Nonetheless, no one, not even a jury consultant, is able to predict the future.   Thus, you, as a business owner, would be misguided to believe that a jury consultant will be able to win the case for you.   Predicting human nature is a tricky business.

3.            Jurors Tend to Favor Plaintiffs.

       There is likely no way to prove that jurors favor Plaintiffs.   However, commonsense should tell you that someone who sits on a jury is there because they believe they are serving the public interest and would like to do the right thing.   Most often the right thing is to give something to someone who has nothing which in your case is most likely the Plaintiff.   Jurors have an innate sense of righting a wrong. Most often the wrong that has been committed has been committed by the Defendant not the Plaintiff.   Therefore, it is at least arguably true that a natural instinct for jurors is to make a Plaintiff’s award.   When a consumer sues a business, and there is no jury trial waiver in the contract, this can be a recipe for a problem.  


 4.            Business Lawyers Need to Be Extra Careful What They Say in Front of the Jury.

     The appellate courts routinely decide and reverse cases in which trial court lawyers say the wrong thing to jurors or show those jurors the wrong types of evidence which may inappropriately influence them.   It is almost as if the appellate courts presume that jurors are not as smart as judges and could be easily swayed by passion, prejudice or other inflammatory statements.  Therefore, when it comes to the introduction of evidence, the likelihood of reversal is higher with a jury because tricky appellate lawyers may successfully argue that the jury was “tainted” or inappropriately swayed by inadmissible evidence, passion or prejudice.   With a  bench trial, these arguments do not have the same force and they are often rejected on appeal.   Because of the higher chance for reversal, that is another reason to avoid jury trials.

5.            The Jury Might Get Stuck.

         If you have seen the movie “Twelve Angry Men”, with Henry Fonda, you will realize that not all juries agree on everything.   Sometimes, like in the movies, a disagreement will resolve itself and a unanimous verdict will be reached.   But what if this cannot be done?   What if the jury is  “hung”?   Guess what?   This means that you will likely have a “mistrial”.   And what happens with a mistrial?   That means a new trial.   And that means more money, more time and more aggravation.   This is yet another reason to avoid a jury because of the possibility that the jury may not be able to decide the case because they cannot agree.

6.            What happens if the Judge doesn’t Like the Verdict.

         Throughout a jury trial, the Judge’s responsibility is mostly to rule upon evidence, charge the jury with the law and keep everyone in line.   Most of the time, the Judge sits during a jury trial absorbing the evidence and trying the case as if he or she were there without a jury.   And that is exactly what they are most often thinking.   Because if the jury doesn’t get it right, the Judge has the right to throw the whole thing out.

         Imagine that you have just concluded a seven day jury trial and then the Judge decides that he or she does not like the verdict and enters a Judgment “notwithstanding the verdict.”   How annoying is that!   Accordingly, in order to avoid this unfortunate occurrence, it seems better to simply try the case directly to the Judge in the first place.                       

  In sum, business owners should avoid jury trials by including in their contracts “jury trial waivers” which will save time, reduce cost and, ultimately, reduce anxiety. 

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