New Jersey Law Journal: A Short Primer on the Advisory Jury in Federal Court
Litigation is full of surprises. Sometimes you win cases you thought you would lose. Sometimes you lose cases you thought you would win. And sometimes you encounter things you never learned or had reason to deal with in law school or in practice. One of those rules (to many of us) is Fed. R. Civ. P. 39(c) – the advisory jury rule – which provides that “[i]n an action not triable of right by a jury, the court, on motion or on its own, may try an issue with an advisory jury.” Don't worry. You now have a short primer on advisory juries in federal court and won’t be blindsided if the issue comes up on short notice (and, actually, it may).1
What Is an Advisory Jury and When Can Courts Use it?
A district court may empanel an advisory jury to hear all or part of a case. Its role is just that – advisory – and the district court is free to reject the verdict. Mala v. Crown Bay Marina. Inc., 704 F.3d 239, 249 (3d Cir. 2013). As long as the district court properly treats the verdict as nonbinding, the decision to empanel an advisory jury is virtually nonappealable. See id. (finding no error given the limited nonbinding nature of advisory jury verdict); Wright & Miller, Federal Practice and Procedure, 9 Fed. Prac. & Proc. Civ. § 2335 (3d ed. 2020 update) (“[T]he district court’s exercise of this discretion is not reviewable.”).
Disadvantages of an Advisory Jury
If an advisory jury is so inconsequential, why does anyone care? Because, binding or nonbinding, you are now presenting your case in front of a jury, which may ultimately have a lot of de facto influence in the outcome even if the court cannot expressly rely on the verdict. It also entails additional time and expense to prepare.
Some courts disfavor advisory juries because they entail all of the complications associated with jury trials without the advantages. Your judge may have lived with the case for years and dedicated hours upon hours reviewing and deciding numerous motions. And now you will need to present the case in a jury setting. The parties will need to undertake all functions associated with an ordinary jury trial, including jury selection, jury instructions and mid-trial evidentiary rulings that would otherwise likely be dispensed of or streamlined in a bench trial setting. But in the end, the trial is still a bench trial under the Rules, and so the judge will still be required to render her findings of fact and conclusions of law. See Fed. R. Civ. P. 52(a)(1); see, e.g., Fort Henry Mall Owner, LLC v. U.S. Bank N.A., No. 11-cv-287, 2012 WL 523657, at *5 (E.D. Tenn. Feb. 15, 2012) (finding no advantages justifying disadvantages, particularly in an extremely complicated case).
Advantages of an Advisory Jury
But some courts have found advantages to using an advisory jury. For example, an advisory jury may be helpful in a case that “implicates important questions of public policy,” because the parties would benefit from insight concerning “the values and standards of the community.” NAACP v. Acusport Corp., 226 F. Supp. 2d 391, 400 (E.D.N.Y. 2002). In Acusport, the plaintiff sought to enjoin certain marketing and distribution of handguns. While actions for injunctive relief ordinarily do not require a trial by jury, the court empaneled an advisory jury to determine whether gun manufacturers and distributors created a public nuisance and, if so, what relief was appropriate, because the issue was “of large moment to the safety of the residents of this district, plaintiff who claims injury, and defendants, who are selling a lawful product under substantial government regulation.” Id. at 400.2
The function of advising on an appropriate form of injunctive relief would seem particularly appropriate for an advisory jury, which can provide ideas and input from the community’s perspective, leaving the court with the ultimate task of adopting or rejecting the advisory verdict, rather than render a mere judgment and/or monetary award that court must ultimately arrive at on its own accord.
Courts have also used advisory juries to “maximize efficiency and convenience,” such as where there are overlapping legal and equitable claims and it would be easier for the jury to consider all the claims together (because a jury cannot hear equitable claims alone). See Starr lnt’I Co. v. Am. lnt’I Grp., Inc., 623 F. Supp. 2d 497, 502 (S.D.N.Y. 2009); Momenta Pharm., Inc. v. Amphastar Pharm., Inc., 255 F. Supp. 3d 279, 290 (D. Mass. 2017). Advisory juries have also been imposed in cases where the court “believes the procedure will cause the parties to engage in a more disciplined, efficient presentation of their respective cases, or where it would value a jury's input on the issues presented.” Affordable Communities of Mo. v. EF & A Capital Corp., 295 F.R.D. 389, 392 (E.D. Mo. 2013).
Advisory Juries Under the Federal Tort Claims Act
Claims brought under the Federal Tort Claims Act (“FTCA”) have produced mixed results on using an advisory jury. The FTCA expressly provides that claims against the government “shall be tried by the Court without a jury.” 28 U.S.C. § 2402. Nevertheless, in cases involving claims against both federal government defendants (under the FTCA) and non-federal government defendants, it could be confusing to instruct the jury to ignore evidence pertaining solely to the claims against the federal government, especially where the “factual underpinnings” of the claims against both sets of defendants were “sufficiently intertwined.” Hamm v. Nasatka Barriers Inc., 166 F.R.D. 1, 3 (D.D.C. 1996). Courts in such cases have exercised their discretion under Fed. R. Civ. P. 39(c) to use the jury to render an advisory verdict as to the federal government defendants. See id.; see also Barleston v. United States, 99-cv-0593E(SC), 2002 WL 1063923, at *1 (W.D.N.Y. Feb. 20, 2002). But see Springer v. Rodriguez, 5:15-cv-108, 2019 WL 4417805, at *2 (S.D. Tex. Aug. 20, 2019), report and recommendation adopted, 15-cv-108, 2019 WL 4418276 (S.D. Tex. Sept. 16, 2019).
Courts have also expressed reluctance to empanel an advisory jury when a jury is not already trying non-federal defendants. See Carter v. United States, 08-4145-JAR, 2009 WL 1956474, at *1 (D. Kan. July 7, 2009).
Cases Involving Contractual Jury Waivers
Putting aside efficiency issues, what about a case where the parties have an underlying contract and agree to waive their right to a jury? Is such a case “an action not triable of right by a jury,” as required by Fed. R. Civ. P. 39(c) to have an advisory jury? Judicial authority on this issue is “scarce and divided.” Seven Seas Petroleum. Inc. v. CIBC World Markets Corp., Civ. Act. No. H-08-3048, 2012 WL 175415, at *4 (S.D. Tex. Jan. 20, 2012).
One may argue that either such an action would have been triable of right by a jury if the parties had not specifically agreed to waive it (such as actions under the FTCA) or neglected to timely demand it and so Rule 39(c) is inapplicable on its face. One may also argue that, in any event, the court should honor the parties’ decision to proceed without any form of a jury, see, e.g., OCI Wyoming. LP. v. PacifiCorp., 479 F.3d 1199, 1205 (10th Cir. 2007), or not allow a party who does not follow the timeframes in the Rules for demanding one to have, in essence, a backstop. But on the latter point, if the purpose of an advisory jury is to assist the court by “enlightening its conscience,” (American) Lumbermens Mut. Cas. Co. of Illinois v. Timms & Howard, 108 F.2d 497, 500 (2d Cir. 1939), or otherwise, should the parties be allowed to contract away the court’s right to utilize this tool and take it out of the ambit of Rule 39(c)? See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2335 & n.15 (3d ed. 2008).
Practice Pointers - What Does This All Mean and Why Are You Telling Me This?
If you haven’t already heard of an advisory jury, now you have – so when a judge sua sponte raises the issue at a pre-trial conference, you can save your best deer-in-headlights look for another occasion. Better yet, if you have a position one way or the other, you can address it spot-on.
Is your client – perhaps an institutional client and/or sophisticated litigator – particularly sensitive or adverse to juries? Does your client use standard contracts containing a jury waiver clause? Consider inserting the parenthetical in the waiver clause “including an advisory jury” to be more explicit. Granted, the court may still not consider itself bound by the parties’ agreement – no matter how explicit – but if it is an important point to the client then it could not hurt, especially if in a later litigation the other side tries to argue in favor of one. Such an explicit waiver would further remove any doubt of the parties’ intentions to have a pure bench trial, should the court be inclined to honor it.
If the issue arises and you want to argue against an advisory jury: Ask the court to honor the parties’ agreement if there is a contractual waiver. There is value to ensuring predictability and honoring the parties’ contracts – especially in a breach of contract case. If the other side failed to timely demand a jury, then you may argue that the advisory jury should not be an end-run around the strict temporal requirements of Fed. R. Civ. P. 38. And regardless of the scenario, point out the extra work and inconvenience for the court associated with jury trials – only for the court to ultimately bear responsibility for findings of fact and conclusions of law.
If you want an advisory jury: Consider what (if anything) makes your case deserving of one. Is there a broader issue of injunctive relief on which an advisory jury can provide ideas or input to the court as opposed to recommending a mere “liable” or “not liable”-type verdict and a damages figure that the judge would need to determine on her own anyway? If not, are there at least public policy implications or community-based standards presented in your case that you can cite and justify the participation of the public through an advisory jury (even if in the end the case boils down to a judge’s independent findings and the hope is a persuasive recommendation on damages that is more likely to come from a jury)? Can you argue that this will force counsel to try the case most efficiently and engagingly – more lively, at least?
These questions may never arise during your career as you may never face an advisory jury. But it does happen, and when it does, you will think of this article, smile, and thank us.
1 State courts may have their own rules regarding advisory juries. The considerations discussed here may be equally applicable to a similar situation you may encounter in state court.
2 The court in Acusport also provided a more detailed summary of the history and purpose of advisory juries.
Reprinted with permission from the August 24, 2021 issue of the New Jersey Law Journal. © 2021. ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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