Jury or judge—which to choose?

Scales of justice
Which should a design professional and their defense counsel choose: judge or jury? The specifics of the case, among other factors, will help determine the best course of action.

Design professionals are often asked during contract negotiations to waive their right to a jury trial. For many years, this was not an issue because it was believed that judges reached better decisions in cases involving design professionals because the facts were too technical for a jury to understand. However, litigation in recent years has shown that this might not be true. One law firm that defends design professionals insured in the Schinnerer program recently cited examples of several lawsuits in which juries rendered complete defense verdicts for the design client.

One advantage of a jury trial is that attorneys get to choose the jury; they don’t get to choose the judge. If the judge has no substantive expertise with design and construction issues, that may limit the judge’s ability to evaluate the evidence. Juries aren’t perfect, but they tend to get it right most of the time. In addition, design professionals typically make good witnesses and are well-received by juries.

In terms of procedure, attorneys can file motions to exclude potentially prejudicial evidence from being heard by a jury. In a bench trial, the judge hears everything. Also, an attorney will more likely be successful in a post-trial motion to set aside a jury’s verdict if the attorney feels they got it wrong; convincing a judge to overturn a decision is much harder.

One caveat in choosing a jury over a judge is in cases involving bodily injuries. Typically, juries are very sympathetic toward injured plaintiffs and their families and may ignore the law in an effort to compensate the plaintiff. But each claim is different, and once a claim is brought, the pros and cons of each litigation option should be discussed with the firm’s claims representative and defense attorney.

For further advice on negotiating the waiver of a jury trial provision in professional services agreements, refer to Frank Musica’s blog entry dated June 15, 2015, “Should you waive your right to a jury trial?

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