When asserted in federal court, the right to a jury trial is governed by federal law. Since the right to a jury trial is fundamental and highly favored, an express contractual waiver of a jury trial is strictly construed and is not lightly inferred or extended. Indeed, the U.S. Supreme Court has repeatedly held that the right to a jury trial is fundamental, and therefore courts must indulge every reasonable presumption against waiver. Thus, courts have held that, in order to be valid and enforceable, a contractual waiver of a jury trial must be made "knowingly and voluntarily."
Moreover, given the presumption against waiver, the majority of circuits have held that the party seeking to enforce a jury waiver provision has the burden of proving that consent to the provision was knowing and voluntary. More often than not, the party seeking to enforce a jury waiver provision is the party responsible for drafting the governing contract, lending further credence to placing the burden of proof on that party. To that end, that party can prepare to meet its burden by careful drafting of the provision, conspicuous presentation, and preparation of a record that the provision was explained and reviewed, as set forth below.
Courts undertake a fact-intensive analysis that considers various factors to determine whether the waiver was made knowingly and voluntarily. In general, the analysis looks at (1) whether the waiver provision was conspicuously placed in the contract, and (2) the facts surrounding the contract negotiations.
Whether the Waiver Provision Was Conspicuously Placed in the Contract
As to whether the provision is conspicuous, courts consider a variety of textual arguments that analyze not only the provision itself, but also its relationship to the rest of the agreement. For example, courts consider whether the jury waiver provision is in fine print or in large or bold print. A provision is considered more conspicuous to the reader if it is in all capital letters and/or in bold font. However, if the contract contains numerous other provisions in all capitals and/or bold font, the jury waiver provision loses its noticeability.
A jury waiver provision is also more conspicuous if it is contained in a paragraph of its own, instead of being included within a general provision addressing the waiver of various other rights. Jumbling multiple waivers together makes the jury waiver more susceptible to going unread or unappreciated. The section's heading should...