Jury Trial Waiver

The failure of a party to serve a demand as required by this rule Alabama Rules of Civil Procedure and to file it constitutes a waiver by the party of trial by jury. A demand for trial by jury made may not be withdrawn without the consent of the parties except where an opposing party is in default. The failure to appear, in person or by counsel, at the trial is a waiver of trial by jury. A party seeking affirmative relief may withdraw that party’s demand for a jury as to any defaulting party without the consent of that party and have that party’s damages assessed by the court without a jury. (Alabama Rules of Civil Procedure, Rule 38)

Alabama law provides that no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury. Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala. 1982). The Alabama Supreme Court has set forth three factors in determining whether to enforce a contractual waiver of the right to trial by jury: (1) whether the waiver is buried deep in a long contract; (2) whether the bargaining power of the parties is equal; and (3) whether the waiver was intelligently and knowingly made. Id. at 1199; Gaylord Dept. Stores of Alabama v. Stephens, 404 So. 2d 586 (Ala. 1981). "While the public policy favoring jury trials subjects jury waiver agreements to strict construction, the application of that policy will not void every such agreement. If the bargaining positions of the parties are equal, ordinarily jury waiver agreements will be upheld." Mall, 412 So. 2d at 1199. "Yet that same public policy that applies the rule of strict construction will likewise limit the scope of operation of a jury waiver agreement to those controversies directly related to and arising out of the terms and provisions of the overall agreement containing the jury waiver provisions." Id. at 1200. Moreover, the Alabama Supreme Court has found that arbitration clauses do not constitute an unenforceable waiver of the right to trial by jury. Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 340 (Ala. 1991).

None.