Waiver of Jury Trial

The failure of a party to serve a demand as required by Alaska Civil Rules and to file it as required by the Rules constitutes a waiver by the party of trial by jury. A demand for trial by jury may not be withdrawn without the consent of the parties. A party's consent to withdraw the jury trial demand may be implied by a failure to appear at trial. (Alaska R. Civ. P. 38)

Alaska law declares that the right of trial by jury shall be preserved to the parties inviolate. However, the right will be deemed waived if the waiver is explicit or illustrated by actions "so inconsistent with [an] intent to enforce the right in question" as to indicate that the right has been waived. Frank v. Golden Valley Elec. Ass’n, 748 P.2d 752, 754-55 (Alaska 1988). The right to jury trial may be waived by conduct or agreement of the parties. Howard S. Lease Construction & Assoc. v. Holly, 715 P.2d 712 (Alaska 1986). In determining whether to enforce a contractual jury waiver, Alaska trial court judges will require a showing that the waiver was made knowingly and voluntarily. The factors to be considered include the conspicuousness of the waiver provision, whether the partes were represented by counsel, the experience and business sophistication of the parties that signed the waiver, and whether there was an inequality of bargaining power with respect to the contract containing the jury waiver.

Drafting suggestion. Several of Alaska’s state trial court judges have enforced contractual jury trial waivers, by finding one or more of the following elements that made the jury waiver language conspicuous: the waiver was in a large type font; was in capital letters; was in bold type; was set apart with a paragraph labeled as jury trial waiver; and/or was prominent by being placed on or just prior to the contract’s signature page.