§38.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§38.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategic and practical considerations regarding CR 38 and FED. R. CIV P. 38 are discussed below.

(1) Considerations affecting a party's decision whether to demand a jury

Deciding whether to demand or waive a jury is an art, not a science. The question arises not only when an action is filed but also when you are considering whether to oppose or rely upon an opponent's jury demand. In evaluating whether to demand or oppose a jury, refer to the checklist designated as Form 38-2 on the CD accompanying this deskbook.

Some efforts have been made to generalize the types of cases plaintiffs would prefer to have submitted to a jury, and these have joined the vast lore relating to jury trial. For example, as suggested by Harry S. Bodin, in Marshalling The Evidence 51 (1966):

Jury trials are generally considered desirable for a plaintiff in such actions as negligence, breach of warranty causing personal injury, slander, libel, false arrest, malicious prosecution, assault, seduction, criminal conversation, breach of promise and alienation of affections. In commercial actions a plaintiff would generally find it advantageous to have a jury in an action for wages, commissions, or breach of contract against an employer, and in most actions against large corporations, banks, stockbrokers, etc.

Another commentator suggests the following:

It is generally considered that a jury is more likely to be subject to sympathetic appeals than a judge .... Other factors that may have an important bearing on the advisability of requesting a jury in a particular case include the following points of difference between jury and nonjury trial: fewer new trials are granted in nonjury cases; litigation is concluded more promptly by nonjury trial; the danger of misunderstanding of the issues, particularly in very complicated cases, is more serious in a jury trial; and probably the results of jury trial are somewhat less predictable than those of nonjury trial.

Robert E. Keeton, Trial Tactics and Methods §7.2 (2d ed. 1973).

These and any other such general comments will always be debatable. There is no substitute for a thorough consideration of all pertinent factors to reach a deliberate decision on whether to demand or oppose a jury.

(2) Effect of jury on tactics and strategy at trial and on pretrial preparation and proceedings

Many litigators believe that trial to a jury should be different than trial to a judge...