Jury Trial Waivers: What You Give Up
What Is a Jury Trial Waiver?
A jury trial waiver is a contractual provision where the parties agree to give up their constitutional right to have disputes decided by a jury. If a lawsuit arises, the case is tried before a judge alone (a "bench trial") rather than a jury of peers.
Jury trial waivers are distinct from arbitration clauses. With a jury waiver, you still go to court — you just do not get a jury.
Where Jury Trial Waivers Appear
- Commercial loan agreements — Almost universally included by banks and lenders
- Lease agreements — Common in commercial and some residential leases
- Business contracts — Frequently included in vendor, service, and partnership agreements
- Employment agreements — Increasingly common, though subject to heightened scrutiny
- Financial services agreements — Standard in brokerage and banking contracts
Why Companies Want Jury Waivers
- Predictability — Judges are seen as more predictable than juries
- Lower damage awards — Studies suggest juries tend to award higher damages, particularly for emotional distress and punitive claims
- Faster resolution — Bench trials are often shorter than jury trials
- Technical disputes — Judges may better understand complex financial or commercial matters
Enforceability Varies by State
Jury trial waivers in contracts are not universally enforceable:
- Federal courts — Generally enforce knowing and voluntary jury waivers
- Many states — Enforce jury waivers with varying levels of scrutiny
- California — Does not enforce pre-dispute jury trial waivers in contracts (California Constitution, Article I, Section 16, as interpreted by Grafton Partners v. Superior Court)
- Georgia — Courts have been reluctant to enforce contractual jury waivers
Courts typically examine whether the waiver was knowing, voluntary, and intelligent.
What to Consider
- Whether your jurisdiction enforces pre-dispute jury waivers
- The types of claims that might arise (emotional distress and discrimination claims often fare better with juries)
- Whether the waiver is conspicuous in the contract (buried waivers face greater challenge)
- Your relative bargaining power when agreeing to the waiver
When to Consult a Lawyer
If your contract includes a jury trial waiver, consider consulting an attorney about whether it is enforceable in your jurisdiction and how it could affect the outcome of potential disputes.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.