By Jones Osborn II

We all have heard horror stories about "runaway" juries that award huge and unjustified damages, or that don't understand the evidence. As a lawyer, I believe juries generally do a good job--but even I must admit, sometimes you have to wonder.

If you'd rather not have a jury decide your fate, there's an easy solution, at least where a lease, sales agreement, or some other form of contract is involved--simply put a provision in the document stating that the parties waive trial by jury.

Such a provision often strikes people as unconstitutional, unenforceable, or maybe even un-American. After all, isn't a trial by jury a basic right guaranteed by the Constitution?

It is--but it is a right that can be waived in advance. Although the courts frequently state that they strongly favor trial by jury, a clear and unambiguous waiver is normally enforceable. When a contract contains such a provision, the parties may bring a lawsuit and have a trial, or course, but the trial is to the judge without a jury. The parties receive all the protections and enjoy all the rights and remedies of the American judicial system, but avoid the uncertainty and additional time and expense sometimes associated with a jury trial.

Landlords and lenders, especially, find it desirable to put a clause in their leases waiving the right to a jury trial. This is because more jurors have been tenants or borrowers than landlords or lenders, and therefore tend to be sympathetic to tenants and borrowers. In addition, tenants and borrowers will sometimes make dangerous, but thinly supported, counterclaims that a jury might tend to believe. For example, a tenant might claim that the landlord has done something to ruin his business and that he is entitled to huge damages for lost profits. A borrower may claim that his business was destroyed by the wrongful termination of a credit arrangement. Many landlords and lenders worry about having such claims judged by a jury of sympathetic laymen not familiar with normal business practices.

To be enforceable, jury waivers have to be clear and unambiguous. Here's an example:

The parties to this agreement hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other to enforce this agreement, to collect damages for the breach of the agreement, or which in any other way arise out of, are connected to or are related to this agreement or the subject matter of this agreement, including but not limited to the use or occupancy of the premises or any claim of injury or damage arising out of the use or occupancy of the premises. Any such action shall be tried by the judge without a jury.

Even with such a clause, however, the other party may still be entitled to a jury trial if he suffers a personal injury caused by other party's negligence, because the courts are reluctant to enforce waivers outside the business transaction covered by the waiver. For example, if a tenant breaks his neck falling down an unlit stairwell, he is probably entitled to a jury trial no matter what the lease says. In addition, the waiver extends only to the parties to the contract. If there is a separate guarantor, for example, he must separately waive the right to a jury trial in the guarantee itself.

Conclusion. If you wish to avoid the expense, delay, and uncertainty of a jury trial in a contract or lease dispute, put a clause in your documents waiving the right to trial by jury. If clearly written, such clauses are normally enforceable.