Don’t Waive Your Jury Trial Waiver Clause

For this week’s Guest Post Friday, Construction Law Musings goes local.  Tom Lane is a litigation attorney at ThompsonMcMullan in Richmond, Virginia, and practices in various areas, including construction law.  Tom graduated from the University of Virginia School of Law in 2001, and he has been associated with ThompsonMcMullan since 2006.

In an article published on its website this past Monday, the Virginia Lawyers Weekly highlighted a recent Fairfax County Circuit Court ruling that should be of interest to those of us who are involved in the construction industry.  In its article entitled, “Jury trial waiver forfeited in scheduling order,” the Virginia Lawyer’s Weekly noted that the Fairfax County Circuit Court recently ruled in the case of Reese Merrifalls, LLC v. Parks’s Restaurant Enterprise, Inc., that a lawyer’s signature on an order scheduling a jury trial overrode his client’s right to enforce a jury trial waiver provision in the contract at issue.

I can think of few instances where a contractor or subcontractor would prefer a jury trial to a bench trial given the complexity of construction issues, the increased costs of a jury trial,  and the unpredictability of jury verdicts.  Thus, even though many construction contracts contain binding arbitration provisions, this scheduling order issue looms as a potential trap for those who lack familiarity with the non-arbitration legal process.

This case appears to have been a case of first impression, and, given that it is a circuit court case and there was no written opinion issued, it creates no direct legal precedent outside of Fairfax County.  I foresee various other attorneys in Northern Virginia citing this ruling, however, in an attempt to obtain the same result in other circuit courts.  I also can foresee other Virginia judges embracing the same logic that Judge Brodie found persuasive in Reese Merrifalls.

Virginia courts generally have enforced jury trial waiver clauses in contracts.  The courts often have looked at the relative bargaining power of the parties to determine whether or not it is conscionable to enforce such provisions.  In the absence of some obvious inequity of bargaining power between the parties, however, the courts generally have upheld such provisions and held  parties to the clear wording in the contract.  The courts even have found that no particular form is required to waive a jury trial and that such clauses do not need to be conspicuous as long as they are not inconspicuous.  For example, the Fairfax Circuit Court found that a jury trial waiver clause was valid where it was not set out in smaller type than other provisions in the contract.

As shown in Reese Merrifalls, however, it is possible to waive a jury trial waiver clause.  Parties and their attorneys, are responsible for reading what they sign and valid writings will be enforced.  Just as the courts will enforce valid jury trial waiver clauses, they also will enforce valid writings waiving such clauses, such as scheduling orders.  Thus, unless we want to leave our fortunes to the whims of a jury who may have trouble digesting the particulars of a complex construction project, we need to heed the sage advice that we should always read what we sign.  Even form scheduling orders.

As always, Tom and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.