Jury Waiver Clauses

Parties may be deemed to have waived a right to trial by jury only if they affirmatively waive that right by filing a written stipulation, signed by all parties who appear at trial, at any time after the action is commenced, but no later than 30 days before the trial is scheduled to begin. (16 A.R.S. Rules of Civil Procedure, Rule 38)

Enforceability of Jury Waiver Clauses has not been decided in Arizona in any definitive fashion. There is no specific statutory authority on point. While Arizona's constitution specifically provides that, "The right of trial by jury shall remain inviolate." Ariz. Const., Art. II, § 23, that constitutional provision has been held to preserve the right to jury trial only in those actions that were recognized under common law as requiring jury trials when the Arizona Constitution was adopted in 1910. Life Investors Ins. Co. of America v. Horizon Resources Bethany, Ltd., 182 Ariz. 529, 898 P.2d 478 (Ct. App. 1995). Article VI of the Arizona Constitution, dealing with the judiciary, expressly provides in § 17 that, "Trial by jury may be waived by the parties in any civil cause…" Arizona has also by statute adopted the common law "so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people thereof…" A.R.S. § 1-201. Arizona may elect to follow those common law decisions that permit and enforce an advance waiver of jury trial rights in contracts. 50A CJS Juries § 185 (1997); cf. Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., 843 F. Supp. 1379 (D. Nev. 1994), affd. 89 F.3d 846 (1996).

Because of uncertainty, it is recommended that Jury Waiver Clauses include a provision that the waiver is made "to the fullest extent permitted by applicable law" and that the language be unambiguous and unequivocal.