Rule 38.Jury Trial of Right in the Superior Court

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

Advisory Committee's Note — January 3, 1978

This amendment is intended to implement the provisions of Chap. 102 of the Laws of 1977 which provides as follows

14 M.R.S.A. § 1204, last ¶, as amended by P.L.1975, c. 41, § 1, is repealed and the following enacted in its place:

The Supreme Judicial Court may by rule provide for the trial of civil actions by juries of 6, 7 or 8 jurors ; provided that the parties to a civil action may stipulate that the jury may consist of any number of jurors less than provided by such rule; and provided further that any party to a civil action shall have the right to a jury consisting of 8 jurors if such party so requests before the day of the trial. The change is intended to recognize the right of any party to a jury consisting of eight jurors. Amendments to Rules 47(c)(1), 47(c)(3), 47(d) and 48(b) deal with related matters, such as the number of peremptory challenges, the selection of alternate jurors and the stipulation for a jury consisting of less than eight jurors, and should be consulted in connection with this rule.

The Advisory Committee urges that in the interest of administrative economy, counsel continue to utilize, wherever possible, the six person jury. This can be done under the provisions of Rule 48(b) as amended this date. The Committee further suggests that the Justice conducting the final pre-trial conference make it a point to raise the matter of jury size for discussion at the final pre-trial conference and attempt to obtain a stipulation to a six person jury in accordance with the provisions of Rule 48(b).

Advisory Committee's Note — October 1, 1975

This amendment and corresponding changes in Rules 47 and 48 are made to implement 1975 Laws, c. 41, which amended the last sentence of 14 M.R.S.A. § 1204 to provide that civil actions might be tried "by juries of not less than 6 jurors" instead of the present minimum of eight. The exception already in the rule referring to the right of the parties to stipulate a smaller number under Rule 48(b) is in accord with language virtually identical to that rule which was added to § 1204 by the same amendment. See Advisory Committee's Notes to Rules 47, 48.

Advisory Committee's Note — May 15, 1974

This amendment, with accompanying amendments of Rules 16 and 39, clarifies an important area. When the rules were adopted in 1959, the prior Maine practice of setting a case for jury trial in the absence of an affirmative waiver thereof was retained in Rule 38, instead of the federal rule requiring a demand. See Field, McKusick and Wroth, Maine Civil Practice §§ 38.3, 38.5 (2d ed. 1970). The pre-trial memorandum practice adopted in the 1967 amendment of Rule 16, however, required that a jury be demanded in the pre-trial memorandum. The result has been in practical effect the adoption of the federal practice. The present amendments clarify any doubts as to the mechanics and effect of the jury demand by adopting pertinent provisions of the federal rules, with modifications to bring them in line with Maine practice. Rule 38(b) sets forth the basic requirement of the demand, and makes clear that the demand is to be made in the pre-trial memorandum in the first instance, whether made by a moving party under Rule 16(a)(3) or a responding party under Rule 16(a)(4). In this respect., the rule works an improvement over Federal Rule 38(b), which requires that a demand be made within 10 days after service of the last pleading. Under the Maine rule, parties will be discouraged from making jury demands routinely in every case, because the demand is to be made at a time when the issues are clear enough to permit a realistic assessment of the practical need for, as well as the right to, jury trial in the case; moreover, unnecessary demands will be discouraged by the imminence of judicial scrutiny at the pre-trial conference. Where under Rule 16 the court under special circumstances specifically excuses the filing of a pre-trial memorandum, the jury demand must be made in a separate writing served within 7 days after the court excuses the pre-trial memorandum.

Rule 38(c) provides that a party may limit his jury demand to certain issues. In such a case an opposing party may make a demand for jury trial of other issues. If the original demand was made in a moving party's pre-trial memorandum, the opposing party's demand must be made in that party's responding memorandum. If the original demand was itself made in a responding memorandum or in a separate writing where pre-trial memoranda have been specifically excused by the court, any subsequent demand for jury trial on additional issues must be made by service of a separate writing within three days after service of the memorandum.

Rule 38(d) makes clear that failure to demand a jury as provided in subdivisions (b) and (c) is a waiver of the right to a jury. The rule further provides that a demand once made may be withdrawn only with the consent of the parties. This provision is to protect other parties, also wishing a jury, who may have relied on the first party's demand.

Advisory Committee's Note — January 1, 1973

The Special Session of the 105th Legislature enacted 1971 Laws, c. 581 to become effective June 9, 1972. Section 1 added the following sentence to 14 M.R.S.A. § 1204:

The Supreme Judicial Court may by rule provide for the trial of civil actions only by juries of 8 jurors. Section 2 of the Act added the following sentence to 14 M.R.S.A. § 1354:

If the Supreme Judicial Court has by rule provided for the trial of civil actions by juries of 8 jurors, then 6 jurors may agree on a verdict and return it into court as the verdict of the jury, and the trial judge shall so instruct the jury.

Thus the principle of the 9-3 majority verdict permitted in civil cases by a 1969 enactment (14 M.R.S.A. § 1354, added by 1969 Laws, c. 310) was carried over by the Legislature into the jury reduced in size.

The amendments being made simultaneously to Rules 38, 47 and 48 are designed to implement this permissive 1972 statute authorizing the Court to institute 8-member juries (with 6-juror majority verdicts). Rule 38(a) is amended to conform with amended 14 M.R.S.A. § 1204, but preserves the present power of the parties to agree on a smaller jury.

In evaluating the policy considerations involved in reducing the size of the jury, the memorandum dated November 29, 1971, issued by Judge Edward T. Gignoux in connection with the adoption by Local Rule of 6-member civil juries in the Federal Court for the District of Maine states the advantages to be derived, as follows:

The six-member jury will expedite the trial of civil cases by saving time in calling, impaneling, and otherwise managing the jury panel. The voir dire examination will not consume the time it now does. An appreciable saving of time will also result in the jurors' examination of exhibits during trial. And, quite probably, the length of jury deliberation will be shortened. These benefits will result in a saving of time to the Court and to counsel.

Not the least significant benefit of the change to a six-member jury will be the substantial financial saving to the government. Federal Jury costs have been rising rapidly each year. Federal jurors now receive statutory compensation of $20 per day and a mileage and maintenance allowance, which in this District frequently runs into substantial sums because of the distances involved. The Report of the Director of the Administrative Office of the United States Courts shows that for the fiscal year 1971, jury fees and allowances in the federal courts amounted to almost $14,000,000. It is estimated that the six-member civil jury can reduce jury costs by at least $3,000,000 per year.

There is every reason to believe that six-member juries will function as effectively and fairly as 12-member juries. Such experiments which have been conducted support this conclusion, and the judges and trial lawyers in those districts which now provide for six-member juries have expressed satisfaction with them in practice.

See 2 Field, McKusick and Wroth, Maine Civil Practice 59, 60-61 (1972 Supp.).

In opinions announced on May 22, 1972, the United States Supreme Court in 5-4 decisions, with numerous concurring and dissenting opinions, has held that Louisiana's and Oregon's constitutional provisions permitting less than unanimous verdicts in certain criminal cases do not violate the Due Process Clause of the Fourteenth Amendment. Johnson v. Louisiana, 40 U.S.Law Week 4524 (9-3 verdicts) [406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)] and Apodaca v. Oregon, 40 U.S.Law Week 4528 (10-2 verdicts) [406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972)]. The purpose of the Louisiana provision was to "facilitate, expedite and reduce expense in the administration of justice." Thus so far as the United States Constitution is concerned, the states are free to institute (even in criminal cases) either both juries of less than 12, Williams v. Florida, [supra], 399 U.S. 78, [90 S.Ct. 1893, 26 L.Ed.2d 446] (1970), and less than unanimous verdicts, Johnson and Apodaca cases, supra. In passing it should be noted that the Article I, Section 7 of the Maine Constitution, in quiring trial by jury in criminal cases, specifies that the jury "usual number and unanimity . . . shall be held indispensable." No such restriction appears in the civil jury provision of the Maine Constitution, Article I, Section 20. See Field, McKusick & Wroth, Maine Civil Practice § 48.1.

The Advisory Committee carefully considered recently expressed views in opposition to either reducing the size of the jury or permitting less than unanimous verdicts, Zeisel, "The Waning of the American Jury", 58 A.B.A. Journal 367 (April, 1972), and questioning the power of federal district courts to adopt six- member juries, Gibbons, "The New Minijuries: Panacea or Pandora's Box”, 58 A.B.A.Journal 594 (June, 1972). The Committee found Judge Gignoux's practical arguments compelling, however, and felt that any constitutional question was removed by the recent Supreme Court decisions.

Reporter's Notes — December 1, 1959

This rule departs from the federal counterpart, under which the waiver of jury trial is automatic unless timely demand for it is made. The Maine practice of having a trial by jury unless the right is affirmatively waived is preserved.

Rule 38(c) is designed to alleviate one purely administrative problem arising out of the merger of law and equity. The constitutional right to jury trial has always been construed to mean the right to jury trial of issues so triable when the constitution was adopted. Farnsworth v. Whiting, 106 Me. 430, 76 A. 909 (1910). There may be a doubt whether the jury right exists as to a particular case or issue in a case brought under the merged system. If the parties are not called upon to specify their request for a jury, the mechanics of reaching a decision whether to place the action on a jury or nonjury trial list will pose some difficulties. Most cases will, of course, be either plainly legal or plainly equitable, and presumably it would not occur to counsel to make an agreement for waiver of jury in a case of an equitable nature.

Subdivision (c) seeks to solve this problem by essentially reversing the federal process. It provides that a party believing the case to be one in which there is no jury right may demand trial without jury. This demand may be endorsed upon the party's pleading. If there is no counter-demand for a jury, the action will be tried without jury. If there is such counter-demand, the court will have to decide whether a jury right exists.

It is to be assumed that in the typical case demanding equitable relief the plaintiff's pleading will be endorsed with a demand for nonjury trial, which the adversary will recognize as sound and file no counter-demand. The case will then be tried without jury. As a further aid to administration the court is empowered to make this determination on its own initiative. It is believed that this scheme will not be onerous to the bar and that it will effectively meet a major objection to the preservation of the jury right without an affirmative demand.