When a Jury Beats a Judge

I represent a lot of companies in disputes with customers, suppliers, and employees. Conventional wisdom says that a judge or "bench trial" is preferred for a corporate defendant rather than a trial by jury. Many contracts and employment agreements specifically provide that the parties waive a trial by jury. Like any rule of thumb, this one must be evaluated on a case-by-case basis.

An Indiana manufacturer retained me to defend a lawsuit brought by a former employee. Plaintiff/former employee sued in Oakland County and asked for a trial by jury. During the lawsuit, the Plaintiff switched lawyers. His former lawyer then brought a claim for attorney fees against my client. We made the strategic decision to rely on the previously requested demand for jury rather than to have the claim for attorney fees decided by the judge. We thought a jury would be more skeptical of the claim and that the judge might be overly sympathetic to a friendly local lawyer.

At trial, the judge surprised all of us by claiming our client could not rely on the former jury demand and that she would rule on the attorney fee claim. She promptly awarded over $100,000 to the Plaintiff's former attorney.

Although the wheels of justice move slowly, they do move, and they do work. We appealed the judge's decision. The Court of Appeals threw out the judge's award of attorney fees, concluding that she had improperly denied our client the right to trial by jury.

It is tempting to rely on "form" agreements we have used in the past. The risk is that, in doing so, we fail to consider circumstances that might make our current position unique. When deciding whether to request, or to waive, a trial by jury, you need to analyze your situation (including your judge) before making that call.

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