The Fragile Right to a Civil Jury Trial in Colorado

• Publication year: 1998
• Pages: 49
• Citation: Vol. 27 No. 1 Pg. 49

27 Colo.Law. 49 Colorado Lawyer 1998.

1998, January, Pg. 49. The Fragile Right to a Civil Jury Trial in Colorado

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49

Vol. 27, No. 1, Pg. 49

The Colorado Lawyer
January 1998
Vol. 27, No. 1 [Page 49]

Specialty Law Columns
The Civil Litigator
The Fragile Right to a Civil Jury Trial in Colorado
by William T. Hudgins

The jury trial right in state court civil actions is often taken for granted. There are, however, a multitude of ways in which even experienced litigation counsel may lose or inadvertently fail to trigger that right. For example, an unexpected denial of a jury right may arise from reasons that are procedural, historical, statutory, or discretionary. The fragile nature of the jury right in Colorado derives from what it is not, namely, a constitutional right. Colorado is one of a minority of states in which the jury trial right is not constitutionally guaranteed.1 Instead, the civil jury right is regulatory, embodied in the rules of civil procedure that the Supreme Court has issued under its rule-making power.2

Notwithstanding the regulatory nature of Colorado's civil jury right, various Colorado courts have embraced the right to a jury trial as a "cherished appurtenance to our judicial process"3 and "of fundamental importance,"4 the erroneous grant or denial of which always constitutes reversible error.5 In Whaley v. Keystone Life Insurance,6 for example, the court noted that the right to a jury trial in civil cases has been an essential part of Colorado's justice system almost from its inception. The court further observed, "The purpose of a jury is to guard against the exercise of arbitrary power-to make available the common sense judgment of the community . . . in preference to the professional or perhaps over-conditioned or biased response of a judge."7 More often, however Colorado courts have stressed the lack of state and federal constitutional underpinnings. Due process and equal protection challenges to denial of the right have consistently failed.8

The fragile nature of Colorado's jury right is, perhaps best illustrated by reviewing the circumstances that trigger the right and the actions necessary to preserve it

Triggering the Right

By historical convention, it is the plaintiff, and not the defendant, that has the privilege of triggering the right, because the legal or equitable character of the complaint determines whether any party may demand a binding jury trial.9 The filing of a counterclaim is not alone sufficient to permit a defendant to make a jury demand, nor can a counterclaim change the character of the action10 if the plaintiff has stated its claims in equity. Moreover, although defendants may seek to preserve their jury right by filing a separate action, rather than asserting counterclaims, this strategy will not likely succeed if the claims are compulsory counterclaims.11 Even where the complaint invokes the jury right, a defendant will fail to preserve it by raising only equitable defenses to otherwise undisputed allegations.12 Plaintiffs also may trigger the right by amending the complaint.13 In short, to ensure a jury trial in Colorado, or to guard against it, a litigant should get to the courthouse first.

The apparent advantage enjoyed by plaintiffs is not without some hidden pitfalls. A complaint pleading its equitable claims first, with legal claims as alternative relief, most likely will fail to trigger the jury right.

For example, in Setchell v. Dellacroce,14 the plaintiff's first claim was for specific performance, with two other claims in the alternative for damages. Although judgment entered against him on the first claim, the plaintiff was nevertheless denied a jury trial on the remaining legal claims because he selected an equitable claim as his "preferred" remedy. Had the plaintiff pleaded a legal claim as his preferred remedy, the court noted, he would have preserved his right. Similarly, the court observed that the plaintiff could have preserved the jury right by amending the complaint to withdraw the equitable claim. However, voluntary withdrawal of an equitable claim is far from a foolproof strategy. Even if the court grants leave to amend, it apparently still has discretion to deny the jury demand if the plaintiff's actions can be viewed as a tactic for delaying the trial.15

A party also may lose its jury right before trial, or even in the midst of trial, if legal claims are dismissed or disposed of by directed verdict.16 Issues such as the foregoing have sometimes caused courts to walk a tightrope of potential prejudices.17

Colorado Rules of Civil Procedure ("C.R.C.P.") 38(a) and 338(a) are the primary sources for determining what issues are "at law" for purposes of determining the jury right. These "at law" issues include the recovery of specific real or personal property, with or without damages, or for money claimed as due on contract, as damages for breach of contract, or for injuries to person or property. This list is not, however, as instructive as it may appear.

For example, an action for the recovery of real property by foreclosure is an action in equity.18 An action for repossession of collateral by a secured party is similarly equitable.19 An action in garnishment is equitable,20 as is an award of back pay arising out of employment discrimination.21 Finally, claims such as for a declaratory judgment, specific performance, a charging lien for unpaid attorney fees, or fraud in the inducement are equitable even where they arise out of a breach of contract.22 Conversely, although fiduciary obligations are equitable in nature, the remedies for breach of those obligations are generally at law.23

Making the distinction between legal and equitable claims is primarily a historical analysis. If a claim existed at common law as one to be brought before a court of equity, it retains that character today for purposes of the jury right. Although separate courts of equity and law were merged long ago, the separate traditions still exert a profound influence on the right to a civil jury trial.24

In applying these principles, the federal courts are often highly protective of the federal constitutional right to a jury trial. In Beacon Theatres, Inc. v. Westover,25 for example, the...