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Is your jury waiver agreement enforceable?

It is not uncommon for small businesses and corporations to enter into agreements that have jury waiver provisions that may apply in the event an aggrieved party files a lawsuit. These provisions are arguably as common as arbitration or mediation requirements. After all, preparing for a jury trial can be much different (and perhaps more costly) than preparing for a bench trial. Because of this, some companies may favor them.

However, California has a long standing public policy of favoring an entity’s right to a trial before a jury in civil cases. Because of this, could there be problems enforcing a jury waiver agreements when a lawsuit is actually filed?

The quick answer is: it depends; but small businesses and corporations should be wary of the ways jury waivers can be enforced. Essentially, such rights can only be waived as proscribed by statute. According to §631 of the California Code of Civil Procedure, a party may only waive the right to a jury trial in the following ways: through written consent with the judge or clerk, through oral consent in open court, failing to announce at the appropriate time that a jury is required, failing to pay jury fees upon filing of a civil case, and failing to appear at trial.

However, these restrictions apply when the parties have chosen a judicial forum (e.g. state court or federal court) to resolve their disputes, as opposed to a non-judicial forum (i.e. arbitration or binding mediation).

For more information or to answer additional questions about jury waiver agreements, an experienced business litigation attorney can advise you.  

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