Jury Waiver Clauses

"The right to a jury most likely can be waived by agreement in New Mexico. While the right to a jury is fundamental, it can be waived or lost, and even an accused felon can waive right to jury trial. State v. Aragon, 1999-NMCA-060, ¶ ¶ 11, 127 N.M. 393, 395, 981 P.2d 1211, cert. denied, 127 N.M. 389, 981 P.2d 1207.

The Court in Fiser v. Dell Computer Corp’n, 2007-NMCA-087, ¶¶ 57 - 62, 142 N.M. 331, 165 P.3d 328, rev’d on other grounds, 2008-NMSC-046, 144 N.M. 464, 188 P.3d 1215, endorsed the general principle that a voluntary, enforceable arbitration clause that also was, effectively, a jury waiver did not violate the constitutional right to a jury trial. “It is clear that when a party agrees to have a dispute resolved through arbitration rather than judicial proceeding, that party has waived its right to a jury trial.” Lyman v. Kern, 2000-NMCA-013, ¶ 17, 128 N.M. 582, 586, 995 P.2d 504, 508, cert. denied, 128 N.M. 688, 997 P.2d 820 (quoting Massey v. Galvan, 822 S.W.2d 309, 318-19 (Tex. Ct. App. 1992)).

Note, however, that signing a broad, generic arbitration agreement does not necessarily waive the right to a jury trial of all claims.  See, e.g. Castillo v. Arrieta, 2016-NMCA-040, ¶¶15 – 27, 368 P.3d 1249 (given attorney’s fiduciary duties to client, attorney must specifically inform client that signing arbitration agreement will waive right to jury trial); Clay v. New Mexico Title Loans, Inc., 2012-NMCA-102, ¶¶24 & 14 – 28, 288 P.3d 888 (claims based on conduct unforeseeable to parties when arbitration agreement made are not within agreement’s scope—not reasonable to conclude that when plaintiff signed agreement he intended to waive right to jury trial on his tort claims).

The right to a jury also can be waived by conduct during litigation. For instance, participating in a bench trial has been found to amount to waiver of right to jury trial, Hull v. Feinstein, 2003-NMCA-052, ¶¶ 3 – 12, 133 N.M. 531, 65 P.3d 266, cert. denied, 133 N.M. 539, 65 P.3d 1094, as has a long delay in formally demanding a jury. El Paso Elec. v. Real Estate Mart, Inc., 98 N.M. 490, 650 P.2d 12 (Ct. App. 1982). The failure to timely file a request for a jury under Rule 1-038 of New Mexico’s Rules of Civil Procedure has been held a waiver of the right to a jury trial. Aspen Landscaping, Inc. v. Longford Homes of New Mexico, Inc., 2004-NMCA-063, ¶¶ 11 - 12,135 N.M. 607, 92 P.3d 53, cert. denied, 2004-NMCERT-5, 135 N.M. 564, 92 P.3d 10. Indeed, the right can be waived even where a jury had been formally demanded under Rule 1-038 and the required jury deposit paid, where a party voluntarily participated in a bench trial. Hull, supra."

Contractual jury waivers probably are enforceable in New Mexico.