By Justin B. Kaplan
Young litigators are routinely taught that if a party does not demand a jury trial in its complaint (or counterclaim), it permanently waived this important right.  This time-worn lesson is not necessarily correct, however.  There is still hope.
The Florida Rules of Civil Procedure provide:
Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.”
Fla. R. Civ. P. 1.430(b).  However:  The judge “may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion”  Fla. R. Civ. P. 1.430(d).
The right to a trial by jury is fundamental and protected by the Florida Constitution, which provides:  “The right of trial by jury shall be secure to all and remain involate.”  Art. I, § 22, Fla. Const.  It is “a deeply and jealously guarded fundamental precept.  It will not be taken away when injustice would result.”  Wertman v. Tipping, 166 So. 2d 666, 667 (Fla. 1st DCA 1964).  Thus, the right to a trial by jury is of great importance and “is not to be narrowly construed.”  O’Neal v. Florida A & M Univ. ex rel. Bd. of Trustees for Florida A & M Univ., 989 So. 2d 6, 9 (Fla. 1st DCA 2008).  “Whenever possible, questions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida Constitutions.”  Christiania Holding, Inc. v. Koalick, 695 So. 2d 491, 491 (Fla. 3d DCA 1997) (internal quotations omitted). The common belief that a party permanently waives its right to a jury trial by failing to make demand in its initial pleading ignores this fundamental tenet of our state’s and the federal constitutions.
Where party fails to demand a jury trial in its initial complaint or counterclaim (or ten days after its filing), the judge retains broad discretionary power to order a jury trial.  Adkins v. Winkler, 592 So. 2d 357, 359 (Fla. 1st DCA 1992).  Where a party makes a demand for a jury trial after the ten-day window to do so closes, its request will be granted if it shows that trial by jury “would impose neither an injustice upon the adversary nor an unreasonable inconvenience upon the court in the performance of its duties.”  Herrera v. Wee Care of Flagler County, Inc., 615 So. 2d 233, 224 (Fla. 5th DCA 1993).
The court is charged with balancing a constitutional right to trial by jury with the practical concepts of judicial economy and prejudice to other parties.  It is granted liberal discretion to determine if justice requires the granting of a belated motion for jury trial.  This discretion is not unfettered, however; and appellate courts appear to review trial court decisions denying a jury trial with greater scrutiny than other rulings ordinarily reviewed for an abuse of discretion—particularly the Third District Court of Appeal.  Christiania Holding, Inc., is instructive.  There, the trial court denied a request for jury trial that was made only three months in advance of the trial date.
Christiania Holding, Inc.,695 So. 2d at 491.  The Third District Court of Appeal quashed the trial court’s order “despite the untimely request for a jury trial,” because “petitioners demonstrated that the jury trial will impose no injustice on their adversaries and further will not unreasonably inconvenience the court in the performance of its duties.”  Id. (internal quotations omitted).  The Third DCA noted that “despite denying the jury trial request, the case remained on the docket for the same date.”  Id.  It therefore appears, therefore, that even if a request for jury trial is made during the lead-up to trial (potentially years after the request should have been made), it would be an abuse of discretion not to grant same so long as it permitting a jury trial would not impact the trial court’s docket and impose no injustice on the requesting party’s adversaries.
While the common belief remains that a jury trial is waived if demand is not made at the outset of litigation, this is not necessarily correct.  Litigants seeking a jury trial that did not make demand initially may still request (and obtain) a jury trial at the discretion of the trial court.  Certainly, it is better practice to timely request a jury.  However, after failing to do so, all may not be lost after all.
 
Justin B. Kaplan is a partner at Kluger, Kaplan, Silverman, Katzen and Levine, P.L. and his practice focuses on complex business disputes, real estate litigation and suits for replevin of personal property.