02/17/2021 by Daniel L. Stephens
At the beginning of most cases filed in state court, litigants must make up their mind whether they want to exercise their right to a jury trial. This decision requires consideration of multiple factors such as: What kind of case is it? Are the issues complex? Is a jury likely to find one side or another sympathetic? What many clients do not know, and may not be told by their attorney, is that there may be no turning back.
In Virginia, either party to an action may demand a jury trial for most claims. Typically, a plaintiff will make its demand in the complaint filed at the outset of the case, and a defendant usually will make its demand in an answer to the complaint. If either party asks for a jury, the trial will be by jury. The decision must occur, then, very early in the litigation process and before the facts are fully developed.
One can imagine a scenario in which a plaintiff demands a jury trial, expecting it will provide an advantage in the case. The defendant, also believing a jury will favor the plaintiff, chooses not to demand a jury. And then the case goes forward. Perhaps some claims are resolved, simplifying the issues in the case. Or maybe some damaging facts are uncovered that, though not definitive for the case, would make one party look particularly badly in the eyes of a jury. If the plaintiff in our hypothetical case changes its mind, and no longer wants a jury, however, the plaintiff cannot simply demand a bench trial instead.
According to Rule 3:22 of the Supreme Court of Virginia, after one party demands a jury trial, the trial will be by jury unless both parties agree to a bench trial. This is true even if, as in our hypothetical, the other party did not ask for a jury in the beginning. In theory, this rule is to protect a party that relied upon another’s demand for a jury trial. Perhaps the defendant hired a jury consultant or made other plans in anticipation of a jury trial. In practice though, this rule can often penalize a party that requests a jury trial in one of two ways. Either a) the requesting party did not give the decision of demanding a jury sufficiently serious consideration or b) the requesting party is at the mercy of the opposing party, stuck with a jury trial, even after the circumstances of the case may have changed.
There are a few lessons to take away from this rule. First, always put serious consideration into whether you want a jury trial. A jury demand should not be treated as a routine act by a party or an attorney. Second, although it may be difficult to predict all that will unfold in a case, some foresight should be exercised since the demand may not be reversible. Finally, if you do change your mind, patiently consider how to present your request to the opposing party. You may be at their mercy.
 “When trial by jury has been demanded as provided in Rule 3:21, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury; or (2) the court upon motion or of its own initiative finds that a right of trial by jury on some or all of those issues does not exist under applicable law.” Va. S. Ct. R. 3:22(a).
 See Dell’Orfano v. Romano, 962 F.2d 199, 202 (2d Cir. 1992); see also Sinclair, Virginia Civil Procedure § 13.4(J) (2021).