Commercial Litigation and Arbitration

Jury Trial Waiver — Circuit Split as to Which Party Bears Burden of Proving That Waiver Was, or Was Not, Knowing and Voluntary

Avants v. Prospect Mortgage, LLC, 2013 U.S. Dist. LEXIS 177990 (D. N.M. Dec. 17, 2013):

"The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate." Fed. R. Civ. P. 38. The right to a jury trial in the federal courts is governed by federal  law. Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835, 837 (10th Cir. 1988) (citing Simler v. Conner, 372 U.S. 221, 221-22 (1963) (per curiam)). Parties may contract to waive their right to a jury trial. See id. Agreements waiving the right to trial by jury are neither illegal nor contrary to public policy. McCarthy v. Wynne, 126 F.2d 620, 623 (10th Cir. 1942), cert. denied, 317 U.S. 640 (1942); see also Telum, 859 F.2d at 837. Jury waiver provisions are enforceable if they are knowing and voluntary. Hulsey v. West, 966 F.2d 579, 581 (10th Cir. 1992). The Tenth Circuit has not yet determined which party bears the burden of proving the enforceability of a jury waiver provision. See id. (acknowledging the split between the circuits regarding whether the person seeking to enforce the waiver must prove it is knowing and voluntary or whether the person seeking to avoid the obligation of the waiver must prove it was not knowing and voluntary but declining to address the issue because it was not necessary to resolve the matter before the Tenth Circuit).


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