§38.5 Purpose and Procedure

• Jurisdiction: Washington

§38.5 PURPOSE AND PROCEDURE

This section concerns the relationship between CR 38 and CR 39. It also discusses procedural issues related to the jury trial right under CR38.

(1)Relationship between CR 38 and CR 39

The purpose and procedure of CR 38 cannot be fully understood without also considering the procedures of CR 39, which governs whether a trial shall be by jury or by the court. See §39.2 in Chapter 39. (Rule 39. Trial by Jury or by the Court) of this deskbook for the complete text of CR 39.

CR 39 augments CR 38 by providing for procedures for the court to (1) act upon a litigant's jury demand or (2) reverse a waiver of the demand. Once a party properly demands trial by jury under CR 38, CR 39(a) provides that the action will be designated upon the court's docket as a jury action. CR 39(b) grants discretion to the trial court to permit trial by jury on any or all issues that could have been tried as a matter of right by a jury if a demand had been timely and properly made.

(2)Implementation of jury trial right

The basic purpose of CR 38 is to recognize that the right to a jury trial is preserved by Washington's constitution. See CR 38(a). CR 38 implements that right by establishing the mechanics for demanding a jury. CR 38 also provides procedures for specification of issues that a party may seek to have tried by a jury. Finally, CR 38 defines conditions that may result in waiver of the jury trial right.

(a) Timing of jury demand

CR 38(b) sets forth the time parameters for making a jury demand: "[a]t or prior to the time the case is called to be set for trial, any party has the right to demand a trial by jury of any issue triable of right by a jury...." Thus, timing for making a jury demand is predicated on when a case is "set for trial." Notably, when a case is "set for trial" does not necessarily mean the actual trial date. See State v. Kratzer, 70 Wn.2d 566, 568,424 P.2d 316 (1967) ("When, as the statute says, a case is called to be set for trial, this simply means that the department of the superior court charged with setting cases for trial has, in one way or another, identified the case, and, after hearing from the parties or counsel, fixed a date or period of time when or within which the case will come on to be tried before a department of the court.").

Practice Tip: Local court rules will establish when a case is called to be set for trial. It is therefore critical for counsel to review the local rules at the outset of litigation. Many local court rules—e.g., King County Local Rules—require the clerk of the court to prepare a "case schedule" when a complaint is filed; the case schedule often includes a deadline to make a jury demand. To avoid an untimely demand, serve and file the demand contemporaneously with service of the complaint or answer.

(b) How to make a jury demand

CR 38(b) sets forth the mechanics for making a jury demand: (1) serve a written demand upon all...