Jury trials - Right to jury trial

Learning Outcomes

This article explores the Seventh Amendment right to a civil jury trial in federal court and its application on the MBE. It explains the historical “suits at common law” framework, the modern distinction between legal and equitable claims, and how the nature of the remedy controls whether a jury right exists. The article clarifies how mixed legal and equitable actions are handled, which issues must be tried to the jury first, and how the jury’s findings bind the judge on overlapping facts. It details the mechanics of demanding a jury under FRCP 38, calculating the 14‑day deadline, specifying issues, and recognizing when the right has been waived or preserved after removal. It also examines discretionary relief from waiver under FRCP 39, the use of advisory juries, and consent‑based jury trials where no constitutional right attaches. Finally, the article reviews FRCP 48’s rules on jury size, unanimity, and verdict requirements, as well as basic voir dire principles, challenges for cause, and Batson‑limited peremptory challenges, enabling focused, issue‑spotting practice for exam‑style questions.

MBE Syllabus

For the MBE, you are required to understand the constitutional right to a jury trial in civil actions in federal court, with a focus on the following syllabus points:

• Analyze the scope of the Seventh Amendment right to a jury trial.
• Distinguish between legal claims (triable by jury) and equitable claims (not triable by jury).
• Determine the right to a jury trial when both legal and equitable claims are joined in a single action.
• Understand the procedure for demanding a jury trial under the Federal Rules of Civil Procedure (FRCP 38 and 39).
• Identify circumstances constituting waiver of the right to a jury trial.
• Know the basic rules regarding jury size and unanimity in federal civil cases (FRCP 48).
• Recognize the role of advisory juries and special verdicts in federal civil practice.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. The Seventh Amendment preserves the right to a jury trial in federal court for:
   1. All civil actions.
   2. Actions at law, but not suits in equity.
   3. Suits in equity, but not actions at law.
   4. Only actions where the amount in controversy exceeds $75,000.
2. A plaintiff brings an action in federal court seeking both money damages for breach of contract (a legal remedy) and specific performance of the contract (an equitable remedy). A timely demand for a jury trial is made. How should the court proceed?
   1. The entire case must be tried by the judge, as equitable claims predominate.
   2. The entire case must be tried by a jury, as a legal claim is present.
   3. The judge must try the equitable claim first, and then the jury tries the legal claim.
   4. The jury must try the legal claim first, and then the judge tries the equitable claim, bound by the jury's findings on common facts.
3. Under FRCP 38, a party waives the right to a jury trial unless a demand is served and filed no later than:
   1. The filing of the complaint.
   2. 14 days after the service of the last pleading directed to the issue triable by jury.
   3. 28 days after the entry of judgment.
   4. At the final pretrial conference.
4. Under FRCP 48, a federal civil jury must begin with at least how many members, and how many must return the verdict unless the parties stipulate otherwise?
   1. 12 members to begin, 12 must return verdict.
   2. 6 members to begin, 6 must return verdict.
   3. 6 members to begin, a simple majority must return verdict.
   4. 12 members to begin, 6 must return verdict.
5. In a diversity case in federal court, state law denies a jury trial for a particular type of claim, but the claim is “legal” for Seventh Amendment purposes. Which law controls whether a jury is available in federal court?
   1. State law controls; no jury trial is available.
   2. State law controls unless the amount in controversy exceeds $75,000.
   3. Federal law controls; a jury trial is available if the Seventh Amendment would require it.
   4. The parties may choose whether to follow state or federal law.

Introduction

The Seventh Amendment to the United States Constitution preserves the right to a jury trial in certain civil cases brought in federal court. Unlike the Sixth Amendment right to a jury trial in criminal cases, the Seventh Amendment right has not been incorporated against the states through the Fourteenth Amendment. Therefore, it applies only in federal court. Understanding when this right attaches, how it is invoked, and the basic procedural rules surrounding federal civil juries is essential for the MBE.

Key Term: Seventh Amendment
The constitutional amendment preserving the right to a jury trial in federal court for civil actions “at law,” where the value in controversy exceeds twenty dollars.

The core principle is that the Seventh Amendment preserves the right to a jury trial as it existed in the English common-law system in 1791, the year the amendment was ratified. This historical test primarily hinges on the distinction between actions “at law” (which were traditionally tried by juries) and suits “in equity” (which were traditionally tried by judges).

Key Term: Suits at Common Law
Civil actions analogous to those heard in the English law courts in 1791, as opposed to equitable or admiralty proceedings; these are the cases to which the Seventh Amendment jury right applies.

Several additional points about the Seventh Amendment are frequently tested:

• It applies in federal district courts and on appeal where a legal issue remains, but it does not apply in state courts.
• It does not create a jury right in every federal civil proceeding; it is confined to “suits at common law.”
• It does not limit the use of pretrial dispositive motions (e.g., summary judgment, judgment as a matter of law). These motions are compatible with the Seventh Amendment because they apply when no reasonable jury could find for the nonmoving party on the evidence.

Federal practice is also governed by the Federal Rules of Civil Procedure, particularly FRCP 38, 39, and 48, which regulate:

• How and when a jury trial must be demanded.
• When a judge may (or must) try issues without a jury.
• Jury size and verdict requirements.

These rules interact with the constitutional right and often form the basis of MBE questions.

Distinguishing Legal and Equitable Claims

The central issue in determining the right to a jury trial under the Seventh Amendment is whether the claim asserted is analogous to an action historically tried “at law” or “in equity.”

The Supreme Court uses a functional approach:

• Compare the modern action to an 18th‑century English cause of action.
• Focus heavily on the remedy sought: money damages vs. equitable relief.

When in doubt, the Court favors preserving the jury trial right.

Key Term: Legal Claim
A claim historically tried by a jury in the English common-law courts, typically seeking money damages as a remedy.

Key Term: Equitable Claim
A claim historically tried by a judge (chancellor) in the English equity courts, typically seeking remedies other than money damages, such as injunctions or specific performance.

Actions at Law

Historically, actions at law primarily sought money damages as a remedy. If a plaintiff is seeking compensatory damages for breach of contract, tort injuries, or violation of certain statutory rights, the claim is generally considered legal, and the right to a jury trial attaches.

Classic examples of legal actions include:

• Tort claims for personal injury, property damage, or economic loss.
• Contract claims for unpaid sums or consequential damages.
• Statutory actions that resemble common-law damages actions (for example, statutory damages under the Copyright Act have been held triable by jury).

The MBE tends to test straightforward scenarios:

• If the primary relief is money damages, expect the claim to be treated as legal.
• If the claim’s only relief is legal damages, a party who properly demands a jury is constitutionally entitled to one.

Suits in Equity

Suits in equity, historically heard by a chancellor rather than a jury, primarily sought equitable remedies such as injunctions, specific performance, rescission, reformation, or accountings. If the claim primarily seeks an equitable remedy, there is generally no right to a jury trial under the Seventh Amendment.

Common equitable claims include:

• Suits for specific performance of a real estate or unique goods contract.
• Suits for injunctions (e.g., to stop trademark infringement or enforce a noncompete).
• Actions to rescind or reform a contract based on mistake or misrepresentation.
• Trust and fiduciary administration suits seeking accountings and instructions.

The fact that an equitable action has serious financial consequences does not convert it into a legal claim. The key remains the type of relief ordered.

Borderline and Mixed-Remedy Claims

Not all remedies fit neatly into “damages” or “pure equity.” Some commonly tested borderline situations:

• Restitution:
  • Restitution measured as a specific sum of money owed (e.g., money had and received) is often treated as legal and jury‑triable.
  • Restitution in the form of a constructive trust, equitable lien, or an accounting for profits is equitable and not jury‑triable.
• Declaratory judgment:
  • The Declaratory Judgment Act is procedural. Whether a jury right exists depends on the nature of the claim. If the declaration concerns rights under a contract where damages could be sought, the claim is treated as legal for Seventh Amendment purposes.
• Back pay vs. reinstatement:
  • Back pay (lost wages) resembles damages and may be triable by jury depending on the statute.
  • Reinstatement, front pay, or adjustments to personnel policies are typically equitable.

On the MBE, you rarely need to parse these fine distinctions beyond the general rule: claims seeking money damages are legal; claims seeking non-monetary coercive relief are equitable. When a statute creates a new cause of action, ask:

• Does the right and remedy resemble a traditional legal claim?
• Does the statute itself specify judge or jury?

If the statute is silent and the remedy is damages, expect a jury right.

Mixed Legal and Equitable Claims

Modern federal procedure allows legal and equitable claims to be joined in a single action (FRCP 18). When this occurs, the right to a jury trial is preserved for the legal claims.

This raises two key issues:

• Which issues must be tried to a jury, and which to the judge?
• In what order must the jury and judge resolve overlapping factual disputes?

The Supreme Court has made clear that the presence of equitable claims does not defeat the jury right on legal claims. In particular:

• Factual issues common to both legal and equitable claims must be tried to the jury first.
• The judge, when later resolving the equitable claims, is bound by the jury’s findings on those common factual issues.

This principle, drawn from cases such as Beacon Theatres, Inc. v. Westover and Dairy Queen, Inc. v. Wood, prevents a judge from deciding equitable issues first in a way that would effectively preclude the jury’s determination of legal issues.

Key Term: Advisory Jury
A jury used by the court to hear and make nonbinding findings on issues not triable of right by a jury; the judge may adopt or disregard the advisory jury’s findings (FRCP 39(c)).

When a case involves:

• Purely equitable claims → no Seventh Amendment right; judge may, but need not, use an advisory jury.
• Mixed claims → parties have a jury right on legal issues; the court may still use an advisory jury on purely equitable issues, but the judge is the ultimate factfinder on those issues.

Worked Example 1.1

Plaintiff sues Defendant in federal court for breach of a construction contract. Count I seeks $100,000 in compensatory damages for defective work (a legal claim). Count II seeks an injunction ordering Defendant to remove debris left on Plaintiff's property (an equitable claim). Plaintiff makes a timely demand for a jury trial. Is Plaintiff entitled to a jury trial on either claim? How should the court proceed?

Answer:
Plaintiff is entitled to a jury trial on Count I (damages for breach of contract), as this is a legal claim. Plaintiff is not entitled to a jury trial on Count II (injunction), as this is an equitable claim. The court should proceed by having the jury decide the factual issues relevant to Count I first (e.g., whether the contract was breached, the amount of damages). Then, the judge will decide Count II, bound by the jury's findings on any facts common to both claims (e.g., whether a breach occurred).

Worked Example 1.2

A shareholder sues a corporation in federal court. Count I seeks an injunction to prevent an allegedly unlawful merger. Count II seeks damages for past breaches of fiduciary duty by officers. The plaintiff demands a jury on all issues. How should the court analyze the jury demand?

Answer:
Count I (injunction against the merger) is equitable, so there is no Seventh Amendment right to a jury on that claim. Count II (damages for breach of fiduciary duty) is legal and carries a jury right. The court must provide a jury on Count II if the demand is timely. The jury should decide factual issues relevant to Count II first (e.g., whether officers breached duties and the amount of damages). The judge then decides Count I, bound by the jury’s findings on any overlapping factual issues (such as whether certain transactions were self‑dealing).

Demand and Waiver of Jury Trial

The right to a jury trial, though constitutional, is not self-executing. It must be properly demanded, or it is waived.

Key Term: Jury Demand
A written request by a party, pursuant to FRCP 38, for a trial by jury on some or all issues so triable.

Procedure for Demand (FRCP 38)

FRCP 38 governs the mechanics:

• Who may demand:
  Any party may demand a jury trial on an issue triable of right by a jury. The right exists on an issue‑by‑issue basis; parties can demand a jury on some issues and not others.

• Timing:
  A party wanting a jury trial on an issue must serve a written demand on the other parties no later than 14 days after the service of the last pleading directed to that issue. [FRCP 38(b)]

  The “last pleading directed to the issue” is usually:

  • The answer to a complaint (for issues raised in the complaint).
  • The reply to a counterclaim (for issues raised in the counterclaim).
  • The answer to a crossclaim, if that crossclaim raises distinct jury‑triable issues.

  Amended pleadings can restart the clock for new issues, but not for issues that were already raised and for which the 14‑day period has expired.

• Form:
  The demand may be:

  • Included in a pleading (e.g., the complaint or answer).
  • Made in a separate written document. [FRCP 38(b)]

• Specification of issues:
  A party may specify the issues it wants tried by a jury. If not specified, the demand is deemed to cover all issues triable by jury. If one party demands a jury on only some issues, any other party may, within 14 days after being served with the demand (or a shorter time if ordered by the court), serve a demand for a jury trial on any or all other issues triable by jury. [FRCP 38(c)]

Additional points that are easy to test:

• A jury demand made in state court carries over after removal to federal court. FRCP 81(c) honors a proper state‑court demand.
• Only one party needs to demand a jury; all parties benefit from that demand on the issues covered.
• A demand that is timely but slightly defective in form is usually liberally construed; the key is timely written notice to the court and other parties.

Waiver (FRCP 38(d)) and Relief from Waiver (FRCP 39(b))

Failure to serve and file a timely demand constitutes a waiver of the right to a jury trial. [FRCP 38(d)] Once a demand has been made, it may be withdrawn only with the consent of all parties. [FRCP 38(d)]

However, FRCP 39(b) gives the court limited discretion:

• Even after waiver, the court may order a jury trial on any issue for which a jury might have been demanded as of right.
• This is not an entitlement; it is within the judge’s discretion. On the MBE, a late motion under Rule 39(b) should be treated as a request for discretionary relief from waiver, not as a matter of right.

Where no jury right exists (e.g., purely equitable issues), FRCP 39(c) allows:

• An advisory jury, whose verdict is not binding.
• A jury whose verdict is binding on consent of both parties, even though no constitutional right attaches.

Worked Example 1.3

Plaintiff files a complaint seeking damages (legal relief) in federal court. Defendant files an answer 20 days later, which includes a counterclaim also seeking damages. Plaintiff files a reply to the counterclaim 15 days after service of the answer. Neither the complaint, answer, nor reply contains a jury demand. Twenty days after filing the reply, Plaintiff files and serves a separate written demand for a jury trial on all issues. Is the demand timely?

Answer:
No. The last pleading directed to the issues in the complaint was the answer. The last pleading directed to the issues in the counterclaim was the reply. Plaintiff had 14 days after service of the reply (the last pleading overall) to demand a jury trial on any jury‑triable issue in the case. Since Plaintiff filed the demand 20 days after filing the reply, the demand was untimely, and the right to a jury trial has been waived. The court could still grant a jury under FRCP 39(b) as a matter of discretion, but Plaintiff has no right to insist on one.

Worked Example 1.4

A retailer sues a manufacturer in state court for breach of warranty, seeking money damages. The retailer does not demand a jury trial under state procedure. The manufacturer removes the case to federal court based on diversity. After removal, the retailer promptly serves and files a written jury demand. The manufacturer objects, arguing that the retailer waived any jury right by failing to demand a jury in state court. How should the federal court rule?

Answer:
The court should treat the federal jury demand as timely if it complies with FRCP 81(c) and 38. When a case is removed, a party who had not yet made a jury demand under state practice may serve a jury demand within the time provided by FRCP 81(c) (often 14 days after removal), even if the party did not request a jury in state court. Unless state law expressly provided that the failure to demand a jury in state court was a waiver that would also bind the case after removal, the federal rules will control. On the facts described, the retailer has not waived the Seventh Amendment right, and the objection should be overruled.

Jury Composition and Verdicts

The Federal Rules of Civil Procedure also govern the composition and verdict requirements for federal civil juries.

Size of Jury (FRCP 48(a))

A federal civil jury must begin with at least 6 and no more than 12 members. All selected jurors must participate unless excused for good cause (for example, illness or extraordinary personal hardship).

If a juror is excused during trial or deliberations:

• The jury may continue as long as at least 6 jurors remain.
• There is no requirement that alternates be used, but courts often seat more than 6 jurors initially to avoid mistrials.

Verdict (FRCP 48(b))

• Unanimity:
  Unless the parties stipulate otherwise, the verdict must be unanimous.

• Number of jurors:
  Unless the parties stipulate otherwise, the verdict must be returned by a jury of at least 6 members. If fewer than 6 jurors remain after some are excused for good cause, a mistrial must be declared unless the parties agree to accept a verdict from the smaller number.

Key Term: General Verdict
A verdict in which the jury simply finds for the plaintiff or defendant and, if for the plaintiff, states the amount of damages or relief awarded.

Key Term: Special Verdict
A verdict in which the jury makes written findings on each material factual issue, leaving it to the judge to apply the law and enter judgment accordingly (FRCP 49).

Federal courts may use:

• A general verdict (most common): jury decides liability and damages.
• A special verdict: jury answers specific questions of fact; judge enters judgment based on those findings.
• A general verdict with written questions: jury gives a general verdict and answers specific interrogatories. If the answers and general verdict conflict, the judge may direct further deliberations or order a new trial.

On the MBE, you should recognize that the Seventh Amendment protects the jury’s role as factfinder, but does not dictate the form of the verdict. FRCP 49 governs those details.

Jury Selection (Voir Dire)

Parties have the right to an impartial jury selected through the process of voir dire. During voir dire, potential jurors are questioned by the court and/or by counsel to determine bias and fitness to serve.

Key Term: Voir Dire
The process by which prospective jurors are questioned by counsel and/or the court to determine their suitability to serve on a jury.

Key points for the MBE:

• Challenges for cause:

  • Unlimited in number.
  • Used to strike potential jurors who demonstrate actual or legally presumed bias (for example, financial interest in the outcome, close relationship to a party or attorney, prior involvement in similar litigation).
  • Judges must excuse a juror for cause when bias is clear, even if the juror claims impartiality.

• Peremptory challenges:

  • In federal civil cases, each side is entitled to three peremptory challenges. [28 U.S.C. § 1870]
  • The court may allocate additional challenges or apportion challenges among multiple parties on the same side.
  • Peremptories can generally be used for any reason or no reason, except that:
    • They cannot be based on race or gender under the Batson doctrine, which applies in civil as well as criminal cases.
    • If a party makes a Batson objection, the opponent must offer a race‑neutral or gender‑neutral explanation. The court then decides whether the explanation is genuine or a pretext for discrimination.

On the MBE, expect fact patterns where:

• A party uses peremptory challenges to remove all jurors of a certain race or gender.
• The opposing party objects, triggering the Batson framework.

The correct approach is to:

• Recognize that categorically striking jurors of a protected class solely because of their membership in that class is unconstitutional.
• Identify that the challenging party must provide a neutral reason; failure to do so requires sustaining the objection.

Worked Example 1.5

A federal civil trial begins with 8 jurors. During deliberations, one juror becomes ill and is excused by the judge for good cause. The remaining 7 jurors announce they have reached a verdict, but it is 6‑to‑1. The parties had not previously stipulated to a non‑unanimous verdict. Can the court accept this verdict?

Answer:
No. FRCP 48(b) requires the verdict to be unanimous unless the parties stipulate otherwise. Since the verdict is not unanimous and there was no stipulation, the court cannot accept it. The jury must continue deliberating or a mistrial may be declared. The fact that 6 jurors agreed is irrelevant; unanimity is required absent stipulation. The presence of 7 jurors is sufficient numerically, but unanimity is still required.

Worked Example 1.6

In a federal civil case, the defendant exercises peremptory challenges to strike all non‑white jurors from the venire, stating in open court that he is concerned non‑white jurors will “sympathize with the plaintiff” in a racial discrimination suit. The plaintiff objects. How should the court rule?

Answer:
The court should sustain the objection. Peremptory challenges may not be used to exclude jurors on account of race. The defendant’s stated justification is explicitly race‑based and is not a race‑neutral explanation. Under the Batson framework, once the plaintiff shows a pattern of strikes suggesting racial discrimination and the defendant cannot provide a race‑neutral reason, the court must find a constitutional violation and disallow the strikes or take corrective action (such as reseating improperly struck jurors or drawing a new venire).

Summary

The Seventh Amendment guarantees a right to jury trial in federal court for civil actions analogous to those tried “at law” in 1791, primarily claims seeking money damages. Equitable claims, seeking remedies like injunctions or specific performance, are tried by the judge. In cases with mixed legal and equitable claims, the jury decides legal issues first, and its factual findings bind the judge on overlapping issues in the equitable claims.

This right must be affirmatively demanded under FRCP 38 within 14 days after service of the last pleading directed to the jury‑triable issue, or it is waived. Once waived, a party may obtain a jury only by the court’s discretion under FRCP 39(b). A valid state‑court demand carries over upon removal, and one party’s timely demand suffices for all.

Federal civil juries must start with 6–12 members. Verdicts must generally be unanimous and returned by at least 6 jurors, unless the parties stipulate otherwise. Voir dire allows parties to strike jurors for cause without limit and to use a limited number of peremptory challenges, but peremptories may not be used to discriminate on the basis of race or gender.

On the MBE, focus on:

• Identifying whether a claim is legal or equitable by looking at the remedy.
• Recognizing the effect of joining legal and equitable claims.
• Applying FRCP 38 and 39 to determine whether a jury demand is timely and whether the right has been waived.
• Applying FRCP 48 and related doctrines to questions about jury size, unanimity, and juror challenges.

Key Point Checklist

This article has covered the following key knowledge points:

• The Seventh Amendment applies only in federal court and only to “suits at common law” (legal, not equitable, claims).
• The main practical distinction turns on the remedy sought (damages = law; injunction/specific performance = equity).
• When legal and equitable claims are joined, legal issues must be tried by a jury first if a timely demand is made, and the judge is bound by the jury’s findings on common facts.
• A jury demand under FRCP 38 must be served and filed within 14 days after service of the last pleading directed to the jury‑triable issue.
• Failure to make a timely demand waives the jury right; relief from waiver is discretionary under FRCP 39(b).
• One party’s timely demand covers all parties on the specified issues; withdrawal requires consent of all parties.
• Federal civil juries must begin with 6–12 members; verdicts must be unanimous and returned by at least 6 jurors unless the parties stipulate otherwise (FRCP 48).
• Voir dire allows unlimited challenges for cause and a limited number of peremptory challenges; peremptories cannot be based on race or gender.
• Advisory juries may be used on issues not triable as of right by a jury, but their findings are not binding.
• In diversity cases, federal law (the Seventh Amendment and FRCP) governs the availability and mode of civil jury trial, even if state law would deny a jury.

Key Terms and Concepts

• Seventh Amendment
• Suits at Common Law
• Legal Claim
• Equitable Claim
• Jury Demand
• Advisory Jury
• Voir Dire
• General Verdict
• Special Verdict