Should I have a jury trial, or have a court trial?
Colorado’s Constitution guarantees a right to a jury trial in criminal cases, but not in civil cases. Whether a person is entitled to a jury trial in a civil case is a complex determination, based on court rules and specific statutes. For example, one statute says there is no right to a jury in a dissolution of marriage proceeding. Another statute says there is a right to a jury in litigation to determine whether a decedent left a valid will. A court may deny a jury trial if the matter is “equitable” rather than legal. A simple distinction between legal and equitable is that a legal claim seeks money damages. An equitable claim seeks different relief, such as an injunction, or an order enforcing a contract. There are hundreds of cases struggling with whether or not a party is entitled to a jury trial. For the purposes of this blog, we will assume that the parties are entitled to a jury.
If you don’t ask for a jury when you first file in a case, you have probably waived or lost your right to have a jury trial. If the opponent asks for a jury and you do not, there will be a jury trial, unless the opponent later waives its demand for a jury. You cannot assume because the opponent already asked for a jury, that you need not demand a jury trial in order to get a jury trial. The opponent could decide later that it does not want a jury trial. If you have not asked for a jury trial, you won’t get one.
Expenses go up with a jury. Civil juries typically consist of six jurors. Judges sometimes seat an alternate juror, too. The jurors must be selected. Before trial begins, jurors may be required to complete questionnaires, which provide information relevant to jury service. The attorneys in the case will review this information prior to jury selection. When the jurors arrive in the courtroom, the judge will provide some initial instructions and ask some questions and the attorneys will ask additional questions of each juror. Each side in the case may ask the court to excuse any juror for a specific cause. Each side is also allotted a certain number of “peremptory” or discretionary challenges for which a cause need not be given. This juror selection process can last for hours. Consequently, attorney fees go up. Then, at the end of the trial, jurors receive “jury instructions” which tell them what the relevant law is, and tell them what issues they must decide. Most jury instructions are standardized in a book prepared every year by the Colorado Supreme Court. But many instructions need to be refined or modified for a specific dispute. Lawyers are allowed to suggest jury instructions that are not covered in the book. Your lawyer will spend many hours proposing jury instructions, and arguing after trial over what instructions the jurors should receive. These hours will not be incurred if trial is to a judge (called a “bench trial”). If your attorney fee arrangement is for a contingent fee rather than hourly fee, the extra expense of a jury trial is less significant.
In some cases lawyers believe a jury trial is best for the client. A well known construction defect lawyer always wants a jury trial. His thinking is that home owners will not tolerate sloppy contractors. “This could have been my house” thinking is what he wants. Plaintiffs with gruesome injuries want juries. Defendants might ask for a jury because the judge who has the case has a suspected bias. Of course, juries have all kinds of biases also. Jury trials are risky for claimants/plaintiffs because they have the burden of proof. In other words, the plaintiff must persuade all six jurors that plaintiff wins. If the plaintiff only persuades five of the six, and there is one hold out, a mistrial can be declared. There will be a new trial with a different jury. Common thinking is that judges are less easily influenced by emotional arguments that jurors are.
A bench trial may be a faster way to conclude a case. Judges can more easily squeeze a one or two day trial onto their dockets, than a three day trial because one day is spent in jury selection and instruction.