Demanding a jury: the deadline that waives a constitutional right by silence

The right to a civil jury is constitutional in every system here. In almost all of them it is also waived by doing nothing, on a deadline measured in days, without any warning from the court.

The deadlines

Two of those deserve to be read twice.

Illinois is the earliest, by a wide margin

735 ILCS 5/2-1105(a):

A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer.

A plaintiff who files a complaint without a jury demand has, on the face of the statute, already missed it. No other system in this table puts the plaintiff's deadline at filing.

Arizona requires nothing, and waiver is affirmative

Ariz. R. Civ. P. 38(a):

The right of trial by jury is preserved to the parties inviolate. On any issue triable of right by a jury, a party need not file a written demand or take any other action in order to preserve its right to trial by jury.

Rule 38(b) inverts the usual machinery. The parties "may be deemed to have waived … a right to trial by jury only if they affirmatively waive that right by filing a written stipulation, signed by all parties who appear at trial, at any time after the action is commenced but no later than 30 days before trial is scheduled to begin." The stipulation "may not be combined with any other motion or pleading."

So in Arizona the jury is the default and it takes a signed, standalone, unanimous document to give it up. Everywhere else the demand is the default-breaker.

"The last pleading directed to the issue" is the phrase to get right

Federal, Ohio, North Carolina and Massachusetts all measure from it, and it is not the same as "the answer."

FRCP 38(b): a party may demand a jury by "serving the other parties with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served," and filing the demand under Rule 5(d).

The last pleading directed to an issue is usually the answer, but a counterclaim produces a reply, and a reply is a pleading. A third-party complaint produces a third-party answer. Each can move the date for the issues it raises — which is why the demand is usually endorsed on the pleading itself and why Ohio Civ.R. 38(B) requires that when it is, "the caption of the pleading shall state jury demand endorsed hereon."

Waiver is automatic, and withdrawal is not

FRCP 38(d): "A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent."

Ohio Civ.R. 38(D) says the same in its own words: failure to serve and file constitutes a waiver, and a demand "may not be withdrawn without the consent of the parties."

That asymmetry is deliberate and useful. Once any party demands a jury, the case is a jury case unless everyone agrees otherwise — so a defendant benefits from the plaintiff's demand and need not duplicate it, though duplicating it costs nothing.

FRCP 38(c) covers scope: a party may specify the issues it wants tried to a jury; otherwise it is considered to have demanded a jury on all triable issues. N.C. Rule 38(c) and Mass. Rule 38(c) are parallel.

Where a fee is part of the demand

Texas — TRCP 216(b) requires a jury fee to be paid within the time for making the written request. A request without the fee is incomplete.

California — CCP 631(b) requires at least one party demanding a jury on each side to pay a nonrefundable $150 fee unless another party on the same side has paid it. Where there are more than two parties, all plaintiffs count as one side and all other parties as the other.

Washington — CR 38(b) folds the fee into the demand itself: a party demands by serving the demand, filing it with the clerk, and paying the jury fee required by law.

Missing the fee is a common way to lose a jury while believing you demanded one.

Two structural quirks

Washington's jury size. CR 38(b): "If before the case is called to be set for trial no party serves or files a demand that the case be tried by a jury of 12, it shall be tried by a jury of 6 members with the concurrence of 5 being required to reach a verdict." The demand governs not only whether there is a jury but how large it is.

New York's note-of-issue anchor. CPLR 4102(a) ties the demand to the note of issue rather than to the pleadings. A party files a note of issue containing a demand; a party served with a note of issue that contains no demand may serve and file its own demand within fifteen days after service. And a demand "shall not be accepted for filing unless a note of issue is filed in the action."

That places New York's jury deadline late in the case, where every other system places it early — and it means a case can sit for years before the question arises.

California waives differently

CCP 631(a): the right "shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f)."

CCP 631(f) then enumerates the ways waiver occurs — including failing to appear at trial, written consent filed with the clerk, oral consent in open court entered in the minutes, failing to timely demand a jury as the section requires, and failing to timely pay the fee. California therefore looks closer to Arizona in form — waiver only by a listed act — but several of those listed acts are omissions, so the practical effect resembles a demand requirement.

Relief after a missed demand

Most systems give the court discretion to order a jury trial notwithstanding a waiver.

FRCP 39(b): "Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded."

Ohio Civ.R. 39(B), N.C. Rule 39(b), Mass. Rule 39(b) and O.C.G.A. § 9-11-39(b) are parallel. The discretion is real but not generous — federal courts in particular have read Rule 39(b) narrowly where the only explanation is inadvertence.

FRCP 39(a) covers the other direction: when a jury trial has been demanded, the action is designated as a jury action unless the parties file a stipulation to a nonjury trial or consent on the record, or the court finds that on some or all issues there is no federal right to a jury trial.

A short checklist

1. Identify the last pleading directed to the issue — not simply the answer.
2. Calendar the demand from that date, using your jurisdiction's number: 10, 14, 15 or 20 days — or, in Texas, 30 days before the trial setting, and in Illinois, at filing or with the answer.
3. Endorse it on a pleading where the rules allow, and caption it if your rule requires that.
4. Pay the fee if the fee is part of the demand — Texas, California and Washington.
5. Don't duplicate someone else's demand out of fear, but don't rely on it either — a demand can't be withdrawn without consent, so if one exists you are covered.
6. If you missed it, Rule 39(b) and its analogues are the route, and inadvertence alone is a thin showing.

Where these rules live

• FRCP 38 — Right to a Jury Trial; Demand
• FRCP 39 — Trial by Jury or by the Court
• CCP 631 — Jury Trial; Waiver
• CPLR 4102 — Demand and Waiver of Trial by Jury
• 735 ILCS 5/2-1105 — Jury Demand
• O.C.G.A. § 9-11-38 — Right to Trial by Jury
• O.C.G.A. § 9-11-39 — Trial by Jury or by the Court
• Tex. R. Civ. P. 216 — Request and Fee for Jury Trial
• Pa.R.C.P. 1007.1 — Jury Trial; Demand
• Ohio Civ.R. 38 — Jury Trial of Right
• N.C. R. Civ. P. 38 — Jury Trial of Right
• Mass. R. Civ. P. 38 — Jury Trial of Right
• Wash. CR 38 — Jury Trial of Right
• Ariz. R. Civ. P. 38 — Right to a Jury Trial

This page explains what the rules say. It isn't legal advice, and whether a particular issue is triable of right by a jury is a constitutional question this site doesn't cover.