Black-letter propositions
- 01
The Seventh Amendment right to a jury in federal civil cases extends to actions that are legal in nature, as opposed to equitable, and an action for damages under a statute that creates a legal claim carries the right to a jury trial.
- 02
When a case joins a legal claim and an equitable claim that share common issues, the court should try the legal issues to the jury first, so the jury right is not lost by first deciding the common issues in equity.
- 03
A party may demand a jury trial on any issue triable of right by a jury by serving a written demand no later than 14 days after the last pleading directed to the issue is served and filing it under Rule 5(d).
- 04
A party waives a jury trial unless its demand is properly served and filed, and a proper demand may be withdrawn only if the parties consent.
- 05
If the demand does not specify issues, the party is considered to have demanded a jury on all issues triable by jury.
- 06
A federal civil jury must begin with at least 6 and no more than 12 members, and unless the parties stipulate otherwise the verdict must be unanimous and returned by at least 6 jurors.
- 07
Each party is entitled to three peremptory challenges in a civil case under 28 U.S.C. section 1870, and challenges for cause are unlimited in number.
- 08
A party may not use peremptory challenges to exclude jurors on account of race; the challenger makes a prima facie showing, the burden then shifts to the other side to give a neutral explanation, and the rule applies in civil cases as well as criminal cases.
- 09
The court may require a special verdict, a written finding on each issue of fact, or a general verdict accompanied by answers to written questions.
- 10
When the answers to written questions are consistent with each other but one is inconsistent with the general verdict, the court may enter judgment according to the answers, direct the jury to further consider its answers and verdict, or order a new trial.
- 11
A party who objects to an instruction, or to the failure to give one, must do so on the record, stating distinctly the matter objected to and the grounds for the objection, at the opportunity the court provides before the instructions and closing arguments.
- 12
A party may assign as error an instruction given only if it properly objected, and a failure to give an instruction only if it properly requested it and, unless the court rejected the request in a definitive ruling on the record, also objected.
Use this attack sequence under time
Frame the issue
Classify each claim as legal or equitable and ask whether a jury right exists on the issue.
Resolve the next checkpoint
Check that a jury demand was served within 14 days after the last pleading directed to the issue and filed.
Resolve the next checkpoint
Ask about jury size, unanimity, and peremptory challenges, and test any strike for a race-based reason.
Finish the conclusion
For instruction error, ask whether the party requested and objected on the record, stating grounds distinctly.
Common wrong turns
- A jury demand cannot be unilaterally withdrawn, because withdrawal requires the consent of the parties.
- Combining a legal claim with an equitable claim does not let the court decide the common issues without the jury.
- An unpreserved instruction error is not reviewed as a matter of course, so a general objection is not enough.
Worked example
A tenant sues a landlord for damages under a fair housing statute and, in the same complaint, seeks an injunction. The plaintiff's lawyer forgets to demand a jury within 14 days after the answer.
The damages claim is legal and would carry a jury right, but the right is waived because no demand was served and filed on time. The equitable claim is tried to the judge.
Practice this topic
The Seventh Amendment and the demand
The Supreme Court held in Curtis v. Loether, 415 U.S. 189 (1974), that the Seventh Amendment entitles either party to demand a jury trial in an action for damages in federal court under section 812 of the Civil Rights Act of 1968, a statute that creates a private damages claim. In Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), the Court held that a party cannot lose the right to a jury on legal issues because they are joined with equitable ones, and that the legal issues common to both claims must be tried to the jury.
Federal Rule of Civil Procedure 38(b) requires a written demand served no later than 14 days after service of the last pleading directed to the issue, and filed under Rule 5(d). Rule 38(c) says a demand that does not specify issues is treated as demanding a jury on all issues triable by jury, and Rule 38(d) says a party waives a jury unless a proper demand is served and filed and that a demand can be withdrawn only if the parties consent.
Selection, size, and race-based strikes
Rule 48(a) requires a jury to begin with at least 6 and no more than 12 members, and Rule 48(b) provides that unless the parties stipulate otherwise the verdict must be unanimous and returned by a jury of at least 6. Rule 47(a) lets the court question prospective jurors itself or permit the attorneys to do so, and Rule 47(b) directs the court to allow the number of peremptory challenges provided by 28 U.S.C. section 1870, which gives each party three.
Batson v. Kentucky, 476 U.S. 79 (1986), held that a party may make a prima facie showing that peremptory challenges were used to exclude jurors on account of race, after which the burden shifts to the other side to come forward with a neutral explanation. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), holds that in civil lawsuits attorneys cannot use peremptory challenges to exclude potential jurors solely on the basis of race.
Verdict forms and preserving instruction error
Rule 49(a) allows the court to require a special verdict in the form of a special written finding on each issue of fact, and Rule 49(b) allows a general verdict accompanied by written answers to questions on issues of fact. Under Rule 49(b)(3), when the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may approve judgment according to the answers notwithstanding the general verdict, direct the jury to further consider its answers and verdict, or order a new trial.
Rule 51(c)(1) requires a party who objects to an instruction, or the failure to give one, to do so on the record, stating distinctly the matter objected to and the grounds. Rule 51(d)(1) allows a party to assign as error an instruction actually given only if that party properly objected, and a failure to give an instruction only if it properly requested it and, unless the request was rejected in a definitive ruling on the record, also properly objected.
Frequently asked questions
What is the controlling rule for jury trial: the seventh amendment, demand and waiver, jury selection, verdicts, and instructions?+
Classify the claim, apply Beacon Theatres to mixed claims, check the 14-day demand, and then address selection, verdict form, and preservation of instruction error.
Is there a right to a jury trial in federal civil cases?+
Yes, for legal claims under the Seventh Amendment, including a damages action under a statute creating a legal claim, as held in Curtis v. Loether.
When must a jury demand be made?+
No later than 14 days after service of the last pleading directed to the issue, and it must be filed, under Rule 38(b).
How many members must a federal civil jury have?+
At least 6 and no more than 12, and the verdict must be unanimous unless the parties stipulate otherwise, under Rule 48.
How many peremptory challenges does each party get in a civil case?+
Three, under 28 U.S.C. section 1870, and the court may allow more when there are several parties.
Can lawyers strike jurors on account of race in a civil case?+
No. Edmonson v. Leesville Concrete Co. (1991) applies the Batson rule to civil lawsuits, so a party may not strike jurors solely on account of race.