Waiver of Jury Trial

"There is right to a jury trial in civil cases involving property and between two or more people with limited exceptions. Mass. Declaration of Rights, Article 15.

The failure of a party to serve and file a demand for a jury trial constitutes a waiver of trial by jury. A demand for a jury trial may not be withdrawn without the consent of the parties. Mass.R.Civ.P. 38"

"This right may also be waived contractually. Palmer v. Lavers, 218 Mass. 286 (1914). As is the case with other contractual provisions, waiver of the right to a jury trial may be set aside by the court in the case of fraud or overreaching. Chase Commercial Corp. v. Owen, 32 Mass.App.Ct. 248, 252 (1992). If the language is clear and legible, agreements to waive the right to a jury trial are not unconscionable or against public policy. Id. at 253-254.

Federal cases, which apply the Seventh Amendment, impose a stricter standard. The Federal cases require the waiver be knowing and intentional. National Equip. Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2nd Cir. 1977). Where the court did not find an extreme bargaining disadvantage, waivers of jury trials, even in standardized contracts, were upheld. Leasing Serv. Corp. v. Crane, 804 F.2d 828 (4th Cir. 1986)."