Failure to comply with a court’s pretrial mediation scheduling order is not grounds to deny a party his or her right to a jury trial. In Bandy v. Vick, a state appellate court reversed a trial court’s judgment denying a jury trial when the parties failed to timely mediate. ABA Litigation Section leaders agree that while respecting a court’s internal policies is important, the judiciary’s authority to manage its calendar must respect an individual’s fundamental constitutional rights.
Trial Court Finds Jury Waiver Where Parties Fail to Abide by Pretrial Order
In Bandy, the plaintiff sued her doctor and his practice in Pulaski County Superior Court in Arkansas for medical negligence related to a surgery performed in 2013. The complaint included a demand for a trial by jury, as did the defendants’ answer and amended answer. While not outlined in Arkansas’s civil procedure statutes or Rules of Court, the Pulaski County court’s pretrial scheduling order required that parties attend and complete mediation no less than thirty days prior to the pretrial hearing date. The pretrial order warned that failure to comply with the pretrial requirements may result in removal from the jury trial docket, dismissal of claims, striking of affirmative defenses, or the prohibition of the introduction of certain testimony and/or exhibits. The parties all received copies of the court’s pretrial order.
When the plaintiff refused to authorize a settlement, the defense declined to participate in mediation. However, inadvertently, both parties neglected to receive the court’s permission to do. After the deadline for mediation passed, the parties jointly requested an extension of mediation deadlines. Despite the aligned nature of their request, the trial court denied the relief sought and further found that the parties had collectively waived their rights to a jury trial. Thus, over the parties’ jointly filed objection, the matter proceeded as a bench trial, resulting in a judgment in the plaintiff’s favor.
In its final judgment, the trial court justified the decision to proceed with a bench trial, stating: “The court has been utilizing the exact same pretrial order for a number of years now and the terms and conditions of the Sixth Division Pre-Trial Scheduling Order are well-known in the central Arkansas legal community.”
Reversal and Remand on Appeal
The defendant doctor appealed to the Supreme Court of Arkansas, arguing that the trial court lacked the authority to order a bench trial when the defendants had not waived their right to a jury trial in a manner prescribed by law, and that finding waiver was a denial of the defendants’ equal protection and due process rights guaranteed by the Arkansas Constitution and the U.S. Constitution.
In its decision, the supreme court made clear that although trial courts have considerable discretion in the control and management of proceedings before them, that discretion is not unlimited. Ultimately, the court held that denying one’s constitutional right to trial due to a failure to meet a court’s self-imposed mediation deadline was an overreach of judicial authority.
Specifically, Arkansas Rule of Civil Procedure Rule 39(a) outlines how a demand for a trial by jury may not actually result in one. The rule is limited to two scenarios beyond failure to demand a jury at the outset of the case: when both parties stipulate to proceed without a jury, or when the court finds, on its own motion, that there is no right to jury trial on some or all of those issues under the state’s Constitution or statutes. As the parties clearly demanded a jury trial both in their complaint and answer, the court found no exception applied. To underscore this point, the court articulated that the applicable Arkansas statute does not provide authority supporting the circuit court’s scheduling order requiring that mediation be completed thirty days prior to the pretrial hearing date in order to preserve a right to trial.
Accordingly, the court held that the circuit court lacked the authority to divest the parties of their fundamental constitutional right to a jury trial.
Takeaways from Taking Away a Right to Jury Trial
Ligation Section leaders agree that the supreme court’s holding is an important reminder that while a court’s authority is far reaching, it has limits. “Mandatory alternative dispute resolution is doubtless here to stay, and parties ignore this requirement at their peril,” observes Wade S. Kolb III, Greenville, South Carolina, cochair of the Section’s LGBT Law and Litigator Committee, “but the Arkansas Supreme Court has made clear that the possible perils do not include a sanction of striking a request for a jury trial.”
Despite the reversal, there are lessons to be learned. “A litigator should consider and determine these elements during the early stages of a matter,” making certain to heed all of a court’s pretrial rules and procedures, says Kenneth M. Klemm, Atlanta, GA, former cochair of the Section’s Pretrial Practice & Discovery Committee. However, in the end, “this ruling should serve as an important reminder of how fundamental the jury trial is to our civil legal system and give comfort to those concerned about how rare this fundamental component is becoming,” says Kolb.
Hashtags: #JuryTrial, #Arkansas, #Mediation, #Waiver
- Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810 (2016).
- Lauren M. Gregory, “Procedural Violations Cannot Result in Loss of Right to Jury Trial,” Litigation News (Jan. 9, 2017).
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