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Business and Real Estate Litigation: Do We Want a Jury? A Critical Question!

Buffington Law Firm's business and real estate trial attorneys are often faced with the question as to whether the case should ultimately be decided by a judge or by a jury. In most types of civil trials (probate proceedings being a notable exception) a party is entitled to a trial by jury under most circumstances. Whether to ultimately elect a jury trial is never a simple question. And yet the decision whether to employ a jury can be one of the most far-reaching decisions that lawyer and client can make. In this brief article we will discuss a few of the considerations that should go into making such decision.  We make no pretense that this article covers all of the factors involved.

In all trials the judge is the finder of law. However, in a jury trial it is the jury who decides the facts, i.e. what the facts are, and applies them to the law as provided to the jury by the judge in his or her jury instructions.

Advantages of a Jury Trial.

1. Motions in Limine. Almost without exception a judge will do his or her best to decide a case fairly and honestly. However, there is one twist to this fact. Sometimes one side or other has something that they do not want the "decider" to know. For example, in some trials one of the parties may have a serious prior criminal record. In a judge-only trial, there is no way to keep this information from the judge even if, as is sometimes the case, the judge is not supposed to consider such fact in deciding the case. Some lawyers sometimes believe that judges, being human, will nonetheless be influenced against a party who has an unsavory background. In a jury trial a party can bring a "Motion in Limine" which is a special motion which, if granted, will prevent this sort of information from being disclosed to the jury at all. Thus, in such a case even if the judge knows about the unsavory background of a party, the jury, who ultimately decides the case, will not.

2. Diversification. In a judge-only trial, one person is deciding the case. All decisions are concentrated in one individual. In a jury trial the decision is spread out among twelve jurors who must normally reach a consensus. Most California juries work very hard to do just that and to do it fairly, and even if one or more jurors are swayed by improper issues or motives, (maybe one of the parties, or one of the lawyers, reminds a juror of his hated mother-in-law!) the jury as a whole often or usually displays an impressive collective wisdom and sense of fairness. There is a reason why the jury system has been around in one form or another for thousands of years!

By contrast, in a bench trial (or an arbitration) all decisions are concentrated in one individual. Many civil trials are critical to the lives of one's clients. There is sometimes a notion that allowing a single judge to decide all aspects of the case is simply too much power to allow a single individual to wield, regardless of the respect that we all hold for the judiciary.

3. Common Sense Life Experience. Juries are mostly average folks. Byt contrast many or most judges by virtue of their offices are well-to-do, upper crust types. Nothing wrong with that, but some people in some cases may rather have the facts of the case judged by a more average group with more conventional life experiences and outlooks. This is a not-uncommon reason for asking for a jury trial. Put another way, sometimes people prefer that the ultimate "decider" of facts be a group of conventional people rather than a judge.

In next week's article we will discuss the advantages of a bench (judge-only) trial.

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