Don’t inadvertently waive your client’s right to a jury trial

There have been some very significant changes recently in the rules affecting when a party must demand a jury trial and post jury fees. This has become a real trap for the unwary.

Code of Civil Procedure section 631, which was amended effective September 17, 2012, provides that a party demanding a jury trial must pay a $150 nonrefundable deposit towards jury fees on or before the date of the initial case management conference (“CMC”). If a party fails to make that payment on time, he waives his right to a jury trial, unless another party on the same side of the case has posted jury fees on time. The prior rule required that a party post jury fees 25 days or more before trial.

A party may also waive his right to a jury trial if he fails to “announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.” CCP 631(f)(4).

Requesting a jury and posting jury fees used to be a fairly simple matter. The Judicial Council Case Management Statement form provides a box to check if the party is demanding a jury trial, so this was a standard part of preparing for the initial CMC. As for fees, once a trial date was set, most law firms would calendar the 25-days-before-trial deadline to post fees. The new deadline for posting fees would not have necessarily been a big deal, since firms could simply start calendaring the initial CMC date as the deadline to post fees.

However, in L.A. County, as part of the massive changes in the way that the court system administers personal injury cases, the court has now done away with CMC’s in most PI cases. CCP 631(c)(2) provides that if there is no CMC, then jury fees are due within one year of when the lawsuit was filed. But what happens if the case actually gets to trial within that one-year period? While this is not common, it does happen. For example, if a plaintiff is under the age of 14 or over the age of 70 and in poor health, he or she may be entitled to a trial date within 120 days of the granting of a motion for preferential trial setting. See CCP 36. Presumably, in circumstances such as those, the jury fee deposit would be due on the first day of trial or whenever the judge has ordered them to be paid, but it’s not clear.

Also, what if there is a CMC scheduled, but it gets rescheduled for some reason? Are jury fees due on the first date or when the CMC actually occurs? Again, the rule is not entirely clear.

As for demanding a jury trial in the absence of a CMC, the important rule is CCP 631(f)(4), quote above, which requires that a demand for jury be made within five days of the initial trial assignment. That is a particularly troublesome rule now in L.A. because trial dates are being set immediately upon the filing of the complaint.

As a result of all this confusion, it is clear that the best practice now is to: (i) demand a jury trial in the original complaint and (ii) post jury fees when filing the complaint. The Judicial Council form complaint does not provide a space for demanding a jury (e.g. I’m writing to the Judicial Council just as soon as I finish writing this), so if you use a form complaint, you’ll need to file a separate document demanding a jury. If you draft your own complaint, without using the Judicial Council form, you can add the jury demand at the end of the complaint.

Why take a chance that some calendaring error or another will cause you to waive your client’s right to a jury trial? Imagine the malpractice exposure you would be facing if you then lost the case (or obtained a very low verdict) at a bench trial. The case may have been problematic in any venue, but the client probably won’t see it that way.

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