Contractual Jury Waivers In Construction Contracts

What Do You Mean I Can’t Have A Jury: Contractual Jury Waivers In Construction Contracts

Construction contracts routinely contain a provision that is easy to overlook during negotiation but carries significant consequences: the jury trial waiver. For metal building contractors and erectors, these clauses appear frequently in subcontracts, vendor agreements, purchase orders, and work order documents—often buried in boilerplate terms and conditions.  Before you sign on the dotted line, these provisions deserve careful attention.

What is a Jury Waiver?

A jury waiver is a contractual provision in which both parties agree to give up their constitutional right to have disputes decided by a jury.  Instead, any dispute will be heard and decided solely by a judge in a “bench trial.”  Notably, the enforceability of such clauses varies widely, state-by-state.  For instance, Arkansas, California, and Georgia prohibit pre-dispute contractual jury waivers as universally unenforceable under state law and/or their state constitution.  Alternatively, states with significant construction activity such as Texas and Florida typically enforce pre-dispute jury trial waivers as long as they are clear, conspicuous, and signed knowingly and voluntarily.

Why Does A Jury Waiver Impact A Contractor?

The right to trial by jury is guaranteed by the U.S. Constitution.  As trial lawyers know, there is no substitute for the jury box.  Juries respond to storytelling, moral arguments, and the human consequences of broken promises—tools in a skilled trial lawyer’s arsenal that are often more effective before twelve citizens than a single judge who may approach a case through a narrower legal lens.  Jury verdicts reflect the collective experience and wisdom of a group of peers, allowing multiple viewpoints to converge rather than one person deciding fact issues.

So why do parties agree to waive this right?  Bench trials are generally faster and eliminate several procedural steps, including jury selection and drafting jury charges. Judges are often viewed as more predictable and better equipped to handle complex disputes.  However, in bench trials, the entire outcome rests on one person who acts as both the legal referee and the finder of fact.  When you waive your right to a jury, you lose some of your most powerful tools for presenting your case.

The decision to waive a jury trial before a dispute even arises is not one to take lightly.  Things that seem black and white at the time of contracting may become grayer when a dispute develops.  Without a jury waiver, you retain the choice of whether to demand a jury when a dispute arises—allowing you to evaluate whether a jury is optimal for that particular situation.  Once you agree to a jury waiver, challenging its enforceability in a state that allows for them is usually a losing battle.

The Takeaway.

Waiving the right to a jury trial is a significant decision that can impact the resolution of future disputes.  Read your contract before you sign it!  Before agreeing to a jury waiver, understand its practical impact and consider whether you want to preserve your full range of options.

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