Think You Waived the Right to Jury Trial in Your Initial Pleading? Maybe Not.

By June 12, 2014

By: Justin B. Kaplan
Young litigators are routinely taught that if the plaintiff 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).  All may not be lost. 
The right to a trial by jury is protected by the Florida Constitution, which provides that “[t]he right of trial by jury shall be secure to all and remain involate.”  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).
Where party fails to demand a jury trial in its initial complaint or counterclaim, the Judge still 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 demand 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).
Thus, the common belief that a jury trial is waived if demand is not made at the outset of litigation 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.