Rule 38.Right to a jury trial

Reporter’s Notes—2018 Amendment: Rules 38(b) and (c) are amended to extend their 10-day time periods to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—1996 Amendment: Rules 38(b) and (d) are amended for conformity with the 1993 amendments to the federal rules. The changes eliminate any possible inconsistency between the two provisions by making clear that the jury demand must be filed as well as served.

Reporter’s Notes: This rule is virtually identical to Federal Rule 38, except that there is no equivalent of Federal Rule 38(e) pertaining to admiralty cases. The rule, read with Rule 39, makes no significant change in Vermont practice. Rule 38(a) preserves to the parties the right to trial by jury as declared in the Vermont Constitution, Chapter I, Article 12; Chapter II, Section 30. That right is the right to trial by jury as it was known at common law at the time of the adoption of the Constitution, except as it may have been extended by statute. See Dempsey v. Hollis, 116 Vt. 316, 75 A.2d 662 (1950); State v. Hirsch, 91 Vt. 330, 100 A. 877 (1917). Rules 38(b)-(d) provide a procedure for demand and waiver of jury trial that varies in detail from, but is consistent in result with, prior Vermont practice. Chapter II, Section 30, of the Constitution provides that trial of issues proper for a jury shall be by jury “Except where the parties otherwise agree.” See also 12 V.S.A. §§ 1903, 1904 (now superseded). Under former County Court Rule 3.3, cases were to be set for trial by either jury or court at least 20 days before the beginning of a term. The Court held that unless a party set a case for trial by jury in timely fashion under this rule, trial would be to the court at the other party’s request. Martyn v. Curtis, 68 Vt. 397, 35 A. 333 (1896). So interpreting Chapter II, Section 30, of the Constitution, the Court recently said, “Proper and effective administration of the courts requires that reasonable notice be given of the intention of a party to avail himself of his right, in a civil case, to put his case before a jury. Without such notice the reference of matters to juries might well become so disordered as to make the right unavailable or ineffective as to any litigant.” Muzzy v. Curtis, 127 Vt. 516, 517, 253 A.2d 149, 150 (1969). Rules 38(b) and (c) provide that a party who wishes trial by jury of some or all of the issues must demand it in writing within 10 days after the last pleading is filed. The demand may be indorsed upon the party’s pleading. If jury trial is demanded for less than all of the issues another party may demand such trial for some or all of the remainder. When a jury is demanded, the action is docketed as a jury matter in accordance with Rule 39(a), subject to contrary stipulation or objection as provided in that rule. See Reporter’s Notes to Rule 39. Rule 38(d) provides that a party who does not demand a jury waives his right thereto. So that other parties may rely upon a demand by one party, the rules provide that a demand may not be withdrawn without the consent of all parties.