The Problem of Jury Trial Waivers in California: A Proposed Solution

By Fredrick S. Levin and Christopher P. Murphy*

Originally published August 8, 2005

On August 4, 2005, the California Supreme Court held that pre-dispute contractual waivers of the right to a jury trial were unenforceable under California law (Grafton Partners L.P. v. Superior Court, No. S123344 ("Grafton")). Though the Court recognized that this result is out of step with most other jurisdictions, it based its conclusion on two main points:

1. Article I, Section 16 of the California Constitution providing that the right to a jury trial in civil cases may be waived in the manner to be prescribed by law, and;
2. The fact that there is no statute in California permitting parties to waive the right to a jury trial by a pre-dispute contractual waiver.