As state court systems muddle through the pandemic with an eye toward resuming court operations, civil jury trial backlogs are mounting. However, large juror pools assembled in close quarters are not compatible with the myriad of safety protocols implemented in each state. In New York, as a result, litigants are maneuvering in other ways toward trial. One means of moving towards trial is an apparent, intentional waiver of a jury trial when a plaintiff files note of issue.
New York Civil Practice Law and Rules (“CPLR”) 3402(a) provides for the filing and service of a note of issue—a form that confirms that the parties have completed necessary discovery and that the case is trial ready. Put another way, it is the paper that gets the case on the court's trial calendar. Any party may file a note of issue after issue is joined, but the plaintiff typically files it. A note of issue must be accompanied by a certificate of readiness and conform to the requirements of 22 NYCRR § 202.21. One of those requirements is the selection of either a jury trial or a non-jury trial.
Along that vein, CPLR 4102 provides “If no party shall demand a trial by jury as provided herein, then right to trial by jury shall be deemed waived by all parties.” If a defendant does not file its own demand for a jury trial within fifteen days of service of the note of issue, the parties will have waived their right to a jury trial, and the court will schedule a bench trial. Thus, it is imperative to weigh the pros and cons of a bench trial.
From the standpoint of the defense, counsel and insurance claims representatives should discuss how to proceed immediately upon the filing and service of a note of issue demanding a “non-jury trial.” What follows are some of the more prominent considerations, but the list is by no means exhaustive.
Health: With only a judge, counsel, and reduced party and expert witnesses, bench trials are likely safer from a COVID-19 perspective. Not only does the court then require fewer precautions, but it also reduces overall time of trial.
Costs (defense): Since bench trials eliminate the need for jury selection, instruction and deliberation, they typically cost much less. Similarly, complex issues are often streamlined where the judge is the fact finder, and there is rarely a need for protracted openings or summations.
Costs (indemnity): Bench trials virtually eliminate the possibility of wildly high verdicts grounded in emotion and sympathy. Thus, “sustainable verdicts” are the norm and become the worst-case scenario. Relatedly, the likelihood of an appeal of the verdict as excessive and against the weight of the evidence is reduced.
Fairness: Some judges may be predisposed to favor one party over another due to familiarity, politics, or some other reason. The same is true, however, for jurors, depending on venue, party status, or the facts of a case.
Practice: In a bench trial, the parties and the court can better control and cure missteps such as the admission and consideration of inadmissible or inflammatory evidence, and curative instructions can be avoided.
The complexity of the case, forum, party likeability, and strength of evidence are all further considerations. Thus, counsel should fully vet the pros and cons of whether to demand a jury trial to ensure the best possible outcome during the ongoing pandemic.
A final note, a plaintiff’s urgency in waiving a jury trial may also signal a willingness settle.
This article is for informational purposes only and not for the purpose of providing legal advice.
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