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Rule 38 – Jury Trial of Right in the Superior Court

May 13, 2021 | Civil Procedure, Maine

(a) Right Preserved; Number. The right of trial by jury as declared by the Constitution of the State of Maine or as given by a statute shall be preserved to the parties inviolate.

Advisory Notes – July 2003

Rule 38(a) is amended to strike the last sentence, which duplicates provisions regarding numbers of jurors that also appear in M.R. Civ. P. 48(b). Concurrently, Rule 48(b) is being amended to recognize changes to 14 M.R.S.A. ยง1204 governing numbers of jurors. Those changes are discussed in the advisory notes to the amendment to Rule 48(b).

(b) Demand. In an action in the Superior Court, any plaintiff may demand a trial by jury of any issue triable of right by a jury by filing a demand and paying the fee therefor as required by the scheduling order entered by the court. For cases required to have an alternative dispute resolution conference pursuant to Rule 16B, payment of the jury fee shall be made as required by Rule 16B(i).
(c) Same: Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If a plaintiff demands trial by jury for none or only some of the issues, the defendant shall file within 10 days a demand for trial by jury of any other or all of the issues of fact in the action and, in the absence of a demand by the plaintiff, pay the jury fee upon filing the demand.
(d) Waiver. The failure of a party to make a demand and pay the fee as required by this rule constitutes a waiver by that party of trial by jury; provided that for any reason other than a party’s own neglect or lack of diligence, the court may allow a party to file and serve a demand upon all other parties within such time as not to delay the trial.
(e) Withdrawal. A demand for trial by jury made as provided in this rule may not be withdrawn without the consent of all parties.

Me. R. Civ. P. 38

Advisory Committee’s Notes 1988

Rule 38 is amended simultaneously with the amendments incorporating the Civil Case Flow Expedition Administrative Order in Rule 16 to provide a procedure for making a demand for trial by jury consistent with those amendments.

Rule 38(b) is amended to provide that a jury demand by any party is to be made in the pretrial scheduling statement as provided in new Rule 16(b)(1), rather than in the pretrial memorandum as formerly. Thus, language concerning cases in which no pretrial memorandum is filed has been eliminated.

Rule 38(c) requires the plaintiff in preparing the pretrial scheduling statement to include a jury demand or any specification of issues for jury trial requested by another party because the plaintiff has not made such a request. Language referring to the pretrial memorandum is eliminated.

Rule 38(d) provides that the right to trial by jury is waived by the failure of a party to include, or cause to be included, a jury demand in the pretrial scheduling statement. To assure that no party is deprived of the right by lack of opportunity to make such a request, or by failure of the plaintiff to comply with a request duly made, the rule provides that in such a case the court may allow a demand to be filed and served “within such time as not to delay the trial.”

Rule 38(e) carries forward the present final sentence of subdivision (d) in a separate subdivision for purposes of clarity.

Advisory Committee’s Notes May 1, 1999

Amendments are made to subdivisions (b), (c) and (d) to conform jury demand practice to the procedure that would be in effect under Rule 16 and the scheduling order issued under the authority of that rule. Parties will no longer file pretrial scheduling statements. Under the new Rule 16, the court issues a scheduling order automatically. That order requires a plaintiff requesting a trial by jury to file a demand for jury trial and pay the required fee within 20 days after the date of the order. In cases filed before May 1, 1999, the demand is made in the pre-trial scheduling statement and the fee is paid when the statement is filed. If the plaintiff does not request a trial by jury or requests a jury trial on only some of the issues, subdivision (c) now requires the defendant to file a demand for jury trial within 10 days. The scheduling order requires that the party demanding a jury trial on any issue pay the jury fee at the time of the demand. In short, Rule 38 and the scheduling order assign the plaintiff the initial responsibility to demand a jury trial. If the plaintiff demands a trial by jury, the defendant need do nothing further. If the plaintiff does not demand a trial by jury or limits the demand to certain issues, the defendant desiring the jury trial must respond promptly by filing the demand under subdivision (c) and, if the plaintiff made no demand, paying the fee. As subdivision (d) makes clear, the failure to make the demand and to pay the fee waives the right to trial by jury.

Advisory Committee’s Note May 16, 2001

The stricken language was a transition provision relating to cases filed prior to May 1, 1999. It is no longer relevant, as all cases filed prior to May 1, 1999, would have, by now, proceeded through the pretrial scheduling statement and jury fee payment process. The added language, effective January 1, 2002, recognizes that for cases subject to court-connected ADR in accordance with Rule 16B, payment of the civil jury fee is deferred, in accordance with M.R. Civ. P. 16B(i), until 150 days after the date of the scheduling order entered in accordance with M.R. Civ. P. 16(a). Cases which are exempt from court-connected ADR by the provisions of Rule 16B or by court order, must continue to pay the jury fee with the demand for the jury trial or upon exemption, as presently.