Once litigation has been formally commenced and the pleadings have opened, a lawyer must decide whether the matter will proceed by way of a judge alone or a jury. Section 108 of the Courts of Justice Act permits either party to require a jury in an action for damages by delivering a jury notice, subject to statutory exclusions and the court’s discretion. Even where a jury is properly elected, the court may opt to strike in the interest of justice, for example; where the issues are complex, the trial is likely to be prolonged, or the jury process would result in unfairness or inefficiency.
As always, there are exceptions to these rules. Civil actions against municipalities are presumptively tried by judge alone, and a jury trial may proceed only with leave of the court, which is rarely granted. Courts are generally reluctant to involve juries in cases engaging municipal policy decisions, infrastructure standards, or layered statutory duties, all of which are seen as better suited for adjudication by a judge alone.
Strategic preferences for a jury also depend on the nature of the claim. In motor vehicle accident litigation, for instance, defendants often favour juries on the assumption that lay jurors may be more skeptical of soft-tissue injuries and chronic pain claims, hoping they will award lower damage awards, absent any type of objective impairments. Plaintiffs, may favour juries in cases such as, sexual abuse, where credibility and moral blameworthiness are very likely to lead to institutional negligence, which can trigger higher damage assessments.
Ultimately, the choice between judge and jury is case-specific and while it may seem straight forward, can be rather complex. The evidence, legal complexity, damages framework, and identity of the defendant(s), will often dictate not only the preferred forum, but whether a jury is realistically available at all.
While trials remain exceedingly rare and are used only as a last resort, Beckett Lawyers have experience proceeding to trial both by way of jury and judge alone and can offer the guidance and support you need from the initial consultation all the way to the courtroom.
