Civil Juries in Virginia
Is there a right to a civil jury in Virginia? Do you automatically get a civil jury trial in Virginia?
Yes to the former question, and no to the second.
Right to a Civil Jury Trial in Virginia
The current Constitution of Virginia states that “…in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred.” (Virginia Constitution, Art. I, § 11).
This is a very longstanding view in Virginia:
“… it may be affirmed that this mode of trial [by jury] is never to be taken away by implication, or without positive words in an act of assembly.” Watson & Hartshorne v. Alexander, (1 Va.) 340, 356 (1794).
But Virginia statutory law has limited the right to a civil jury in two important ways:
(1) You must demand a jury trial.
(2) You may agree to waive your right to a jury trial.
Requirement to Demand a Jury Trial
By statute, Virginia law requires that one make a written demand for a jury trial in a civil case as prescribed by Virginia’s Rules of Civil Procedure or else the right to a jury trial is waived. Va. Code § 8.01-336.
How and when must you do this?
By serving the other parties with the written demand for a jury trial after filing the complaint but “not later than 10 days after the service of the last pleading directed to the issue,” and by filing the demand with the trial court. Va. Sup. Ct. R. 3:21(b).
For example, such a written demand may be accomplished by simply stating the jury demand in a plaintiff’s complaint or a defendant’s answer.
Possibility of Waiver of the Right to a Jury Trial
As noted above, a person waives his right to a jury trial if he has not made a jury demand within 10 days after the defendant has filed his Answer (which is the last pleading directed to the issue of the complaint). See, e.g., Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 938 (4th Cir. 1980) (jury demand untimely because it was made three weeks after the defendant filed its answer and removed the case to federal court).
But a person may also waive his right to a civil jury trial by contract.
For example, suppose you sign a contract with a provision stating:
“[The Parties] waive their right to trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with this [contract], [or] the relationship of [the Parties] …”
Unless there is evidence that such a provision was signed under “fraud, duress, mutual mistake or lack of capacity,” Virginia law will enforce such a contractual waiver of the right to a civil jury trial. Fairfax Co. of Virginia, LLC v. Samson Realty, LLC, 74 Va. Cir. 141 (Fairfax 2007).
And as the defendant discovered in that Fairfax County case, failing to read the entire contract, but agreeing to it anyway, is not a valid excuse to ignore a contractual waiver of the right to a civil jury trial.
