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CHAPTER 8: OVERVIEW OF CIVIL CASES - Table of Contents

8.1 - Introduction8.2 - Where to find civil law8.3 - Starting a civil case: the complaint8.4 - Serving the complaint8.5 - Responding to the complaint8.6 - Requesting a jury8.7 - Alternate Dispute Resolution8.8 - Initial Procedural Requirements8.9 - Pretrial Discovery8.10 - Summary judgment motions8.11 - Trial8.12 - Damages, Costs and Attorneys Fees

8.6 REQUESTING A JURY

There is a constitutional right to a civil jury trial in most cases in federal court, but in state court a jury trial is available only as the state statutes permit. Whether a jury trial is available will usually turn on the type of claim being raised or the type of relief being sought, and a jury trial is available much more often than it is not. Some of the cases in which it is not available are actions to foreclose a mortgage or to enforce a lien, actions to obtain an injunction, and actions to require a contract to be performed (as opposed to one seeking damages from its non-performance).

Even when it would be available, a jury trial has to be requested by at least one of the parties, who must also pay a relatively small "jury fee." Attorneys may have all sorts of reasons for either wanting or not wanting a jury. They may believe (rightly or wrongly) that a jury would be more sympathetic or less sympathetic to the party they represent in a given case than a judge would be. They may believe the issues in the case are more legal than factual or so technical that they might be better resolved by a judge. They may not like the particular judge assigned to the case. They may believe (probably correctly in most cases) that a jury trial will take longer to schedule and longer to complete, will be more expensive, and will require more work and preparation by the attorneys, than a non-jury trial would. Some lawyers representing plaintiffs will almost always request a jury, but others may seldom do so. As in selecting individual jurors at trial, the decision to have a jury in the first place involves many unknowable factors, and may be viewed as either art (as opposed to science) or a game of chance.

If a jury trial does occur, the jury is described as the (collective) "finder of fact." That means that almost all factual issues will be solely for the jury to decide. By contrast, decisions about legal issues will be made by the trial judge, who will also instruct the jury at the end of the case as to what legal standards to apply to the facts they determine in order to reach an ultimate verdict.

Occasionally a single case will involve both issues as to which a party is entitled to have a jury decide and issues as to which there is no jury right. Sometimes these cases are "broken up" so that the judge decides the non-jury issues after the jury decides the others; sometimes the judge will decide the non-jury issues at the same time the jury is deciding the others.

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