CPLR Section 4102: Correlation Between Demand And Waiver Of Trial
Under the rule of joinder, where a plaintiff has two or more entirely separate claims emanating from separate transactions, he can sue on them in one action. CPLR section 4102(c) provides that a party has not waived his right to a trial by jury by joining a legal claim with another claim not triable by jury which arose out of a separate transaction. Thus, a plaintiff is entitled to a jury trial on its legal claims for relief when its equitable claims for relief arise out of an entirely separate transaction than that which gave rise to its legal claims. CPLR section 4102 works in conjunction with section 4101 regarding demand and waiver of trial by jury. If an action is triable of right by a jury, a jury trial still must be affirmatively
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demanded in the note of issue. If a party served with a note of issue not containing the demand wants a jury trial, it must then file a demand for trial by jury. If no party demands trial in one of these ways, trial by jury is waived. As CPLR section 4101 enumerates the actions triable by jury, CPLR section 4102 may operate to preclude a jury trial in actions that join a claim for relief that is triable of right by jury with one that is not.
A. Legal and Equitable Claims Arising Out of the Same Transaction
Where a plaintiff who wants a jury trial pleads law and equity claims which are based upon the same transaction, CPLR sections 4101 and 4102 come into play and courts interpreting these rules have created several contours to consider. The general rule has been that the right to a jury trial is waived when a plaintiff mixes legal and equitable claims arising from the same transaction.
Another general rule has evolved: if the equity claims are imperatively required to afford full relief to the pleader, or if the primary thrust of the action is equitable, then there is no right to a jury trial. If on the other hand, the equity claims are incidental to the legal claims, such that money damages alone would afford full relief to the pleader, then the pleading of those incidental equitable claims is no bar to a jury trial. The test to determine whether equitable claims are “incidental”, as stated by the Appellate Division, is:
If, in fact, a sum of money alone can provide full relief to the plaintiff under the facts alleged, then there is a right to a jury trial….That equitable relief under similar circumstances may be available is not the determinant. What is critical is whether the facts pleaded in the particular case ‘imperatively require’ equitable relief or whether under those facts the requested relief of money damages only can also provide full redress.
In other words, and by way of example, a plaintiff who calls upon the court to order specific performance of a contract for the fifty unique widgets he did not receive will not be fully redressed by fifty dollars -- full redress would only be achieved by the court’s order to the defendant widget salesman to specifically perform under that contract. Equity is imperatively required to afford complete relief to that plaintiff. This scenario played out in Daley v. The Related Companies, where the underlying action concerned the plaintiff’s employment contract, which provided for money damages in the event that certain tax shelters were not available. The court reasoned that the plaintiff’s ability to take advantage of the tax benefits provided for in the contract would require the court to order specific performance, not merely money damages. The court thus held that the primary relief sought was equitable, as an order of specific performance was imperatively required to afford complete relief to the plaintiff, and because it was the plaintiff who demanded the jury trial, the demand was stricken.
The mixing of imperatively required equity claims with legal claims causes a plaintiff to waive the right to a jury trial; however, where the equitable claims pleaded are merely incidental to legal claims, such that money damages would provide complete relief, the plaintiff is entitled to have his case heard by a jury. The court’s holding in the case of Greenfield v. Philles Record, Inc., also a First Department case, sheds light on the distinction between those equitable claims which are merely incidental and those which are imperatively required to afford complete relief to the plaintiff.
In Greenfield, the plaintiffs, the former members of the singing group “The Ronettes,” brought suit against a record company for breach of contract and conversion, and asserted a cause of action for a constructive trust on money the defendants allegedly retained improperly. The cause of action for imposition of a constructive trust was incidental to the causes of action for breach of contract and conversion, as money damages could afford full relief to the plaintiffs. The plaintiffs would have consequently been entitled to a trial by jury, but they then amended their complaint, adding a cause of action for rescission of the contract at issue. Money damages would no longer provide complete relief to the plaintiffs because they also sought ownership of the master recordings. The court held that the equitable claim for rescission was imperatively required to obtain full relief and therefore the plaintiffs waived their right to a jury trial.
Whether equitable relief is imperatively required and what constitutes the gravamen, main thrust or primary character of the action, is a mature, discretionary decision predicated upon what the particular pleader primarily seeks. It is simply not enough for the court to count up the number of equitable and legal causes of action to decide this issue. In Benn v. Benn, for example, the plaintiff’s causes of action were for an accounting, constructive trust, fraud, conversion, piercing the corporate veil, and a declaratory judgment. The trial court applied the proper test and concluded that the plaintiff’s breach of contract and tort claims for fraud and conversion were the true basis for this lawsuit. The demand for an accounting, constructive trust, piercing the corporate veil and a declaration of title to the apartment in dispute were incidental to the plaintiff’s legal claims. Clearly, the Benn court did not count the number of causes of action that devolved from equity to reach the results that it did in holding that trial by jury had not been waived.
Likewise, the mere use of an historically equitable procedure does not control the analysis. The interpleader, for example, has equitable origins. In Geddes v. Rosen, the court made clear that although the procedure of interpleader developed in equity, the interpleading plaintiff and interpleaded defendants would be entitled to a jury trial because the basic nature of the case was an action at law. Under the proper analysis, neither the designation of the cause of action as one in equity in the note of issue nor the use of interpleader could change the basic nature of the action.
Even further, a meticulous evaluation of the pleadings is necessary because the plaintiff’s demands in its prayer for relief are not determinative of the issue, as the Second Department in Hebranko v. Bioline Laboratories noted: “Where a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint’s prayer for relief will not constitute a waiver of the right to a jury trial.” The court reasoned that because the gravamen of the action was to recover damages for breach of an indemnity agreement, the character of the action was essentially legal and the fact that a demand in the prayer for relief was “partially equitable in nature” did not alter the result. The result of this court’s analysis was controlled by the facts set forth or proved and not the demands in the prayer for relief.
As these cases illustrate, whether equitable relief is sought at all, whether equity claims are imperatively required for full redress and whether the primary character of the action is equitable requires careful analysis, whether it is asserted by the facts, in the prayer for relief or by the catch-all request for “such other and further relief as to this Court seems just and proper.” The foregoing reflects that the short-handed expression that mixing law and equity claims concerning the same transaction waives a right to a jury, truly and materially understates the reality that the pleading of incidental equitable claims does not prevent a plaintiff from demanding and having a jury trial.
B. Jury Demand By Defendant
The preceding section revealed the results of demands for jury trials that were initiated by plaintiffs in actions in which they had combined claims for legal and equitable relief arising from the same transaction. Under the proper analysis, where equity is imperatively required to afford full redress to the plaintiff, the plaintiff’s demand for a jury trial should be stricken; where the equitable causes of action are merely incidental to the legal relief sought, the plaintiffs’ demands for a jury trial should be granted. Where the defendant demands a jury trial in an action that combines claims for legal and equitable relief arising from the same transaction, the same analysis must control.
In Kaufman v. Brenner, the plaintiff demanded specific performance of a sales agreement or, alternatively, money damages representing the amount it would get from the defendant upon an award of specific performance. The court applied the proper analysis regarding the primary character of the case and concluded that the “main thrust of the action” was equitable. The court then held that the defendant was not entitled to a jury trial of the plaintiff’s legal causes of action. That the main thrust of the action was equitable vitiated the right to a trial by jury for both parties on all issues. Similarly in Downtown Art Co. v. Zimmerman, the defendant demanded a jury trial in an action in which the plaintiff had joined legal and equitable relief arising out of the same transaction. The First Department affirmed the lower court’s determination that the primary character of the case was equitable because neither party would be fully redressed by an award of money damages, and held that the defendant was not entitled to a jury trial on any issues.
In Gordon v. Continental Cas. Co., the plaintiff attempted to characterize its claims as equitable, but the court utilized the proper analysis and determined that the pleaded facts established a legal claim for relief. The court laid down the general rule with respect to the defendant’s right to a jury trial in actions seeking both legal and equitable relief: “the defendant is entitled to a jury trial if the issues for resolution are legal…the defendant is not so entitled if the legal relief is sufficiently incidental to equitable relief such that, at common law, the chancellor had jurisdiction over the entire matter.” In determining that the action was essentially legal, the defendant’s jury demand was granted.
In L.C.J. Realty Corp. v. Back, however, a contrary result was reached when the court did not employ a similar analysis concerning the combination of legal and equitable causes of action arising from the same transaction. The plaintiffs’ first cause of action seeking specific performance was grounded in equity and the second, seeking money damages, was grounded in law. The court did not pass on whether the plaintiffs waived their right to a jury trial and merely noted that by joining these claims the plaintiffs may have waived it -- but, the court then brusquely stated that the plaintiffs could not “thereby deprive defendants Back of their right to a jury trial of all issues so triable.” The defendants were granted a jury trial. It is worth noting that these defendants had injected counterclaims, which can appear to change the results flowing from the proper analysis. It possible that the jury trial was actually granted on the counterclaims that the court found to be primarily legal. As the Back case illustrates, contrary results can be reached when the proper analysis is not utilized by the courts.
Once the court determines that the primary character of the action is legal and money damages would afford full relief to the pleader, and any equitable claims are merely incidental, the defendant’s demand for a jury trial should be granted.
Without engaging in the proper analysis, it is inaccurate to say that the plaintiff’s complaint cannot deprive the defendant of a jury trial. Where the main thrust of the action is equitable, the defendant does not have a right to a jury on the incidental legal issues arising in the main action. Though the analysis does not change, the results truly become divergent when defenses and counterclaims are …show more content…
interposed.
C. Equitable Defenses and Equitable Counterclaims
Results become divergent following the use of the proper analysis when counterclaims and defenses are pled because CPLR section 4101 disconnects equitable defenses and equitable counterclaims from the main action and because CPLR section 4102(c) specifically provides that legal counterclaims that are injected into an equitable action are triable by a jury.
Commentators and courts have noted that because certain equitable defenses were statutorily required to be tried by jury prior to the adoption of the 1894 Constitution, the deprivation of a jury trial for all equitable defenses is arguably unconstitutional.
Under CPLR section 4101, when a plaintiff brings a legal action, the defendant’s equitable counterclaims should not be submitted to a jury. Under CPLR section 4102(c), when a plaintiff brings an action sounding in equity, the defendant’s legal counterclaims should be tried by a jury if so demanded. The counterclaims pled by a defendant enjoy the same careful analysis as the claims contained in the plaintiff’s complaint. The rule remains: a pleader waives the right to a jury trial by joining legal and imperatively required equitable counterclaims arising out of the same
transaction.
Where a plaintiff brings a law claim, some courts have held that the defendant waives its right to a jury trial on the main action when it brings related imperatively required equitable counterclaims. In Seneca v. Novaro, the plaintiff brought an action to recover a debt due to him -- a legal action. The defendant answered by defense and counterclaim, alleging that the plaintiff, in breach of his fiduciary duty, held thirty shares of stock as security for the repayment of the debt and prematurely sold the stock for a fraction of its market value. The defendant sought an accounting and demanded a jury trial. The court determined that the gravamen of the defense and counterclaim sounded in equity and held that when a defendant interposes an equitable counterclaim related to the legal action, the defendant has waived a jury trial even on the main claim.
Other courts have held that the defendant’s right to a jury trial on the main claim is preserved on the theory that a contrary holding would only encourage the defendant to bring his equitable claim separately. In International Playtex, Inc. v. CIS Leasing Corp., the plaintiff brought an action sounding in law and demanded a non-jury trial. The defendants asserted equitable counterclaims related to the main action and demanded a jury trial. In deciding whether the injection of equitable counterclaims waives the defendants’ right to a jury trial on the main action, the court noted that to preserve the right to a jury trial on the main action the defendants would have to have commenced a separate action to assert the equitable counterclaims, which flies in the face of judicial economy, predictability and consistency. The court held the defendants’ assertion of related equitable counterclaims should not operate as a waiver of the right to a jury trial on plaintiff’s or defendants’ legal claims.
Frequently, when a plaintiff brings an action joining claims for legal and equitable relief, it is because the facts of the transaction giving rise to the legal claims are the same set of facts as those that gave rise to the equitable claim. When the defendant’s counterclaims put the same transaction at issue, the facts giving rise to the counterclaims raise issues which are likely to be the same as those at issue in the main action and also in the plaintiff’s reply to those counterclaims. When the facts to be heard in situations like that are so “intertwined” some courts have held that one trial of all issues before a jury is warranted.
The right to a trial by jury is fundamental to the New York system of jurisprudence and whether litigants have waived that right warrants a detailed analysis. What the foregoing indicates is that there is a careful and complex analysis that is meant to be employed by the courts when faced with suits sounding in both law and equity, whether in plaintiff’s pleading or by defendant’s answer, and whether through defense, cross-claim or counterclaim.
In England, however, non-jury civil trials have become the default. There is no careful analysis to be employed. Even though there are categories of cases triable of right by a jury, the ultimate decision rests with the discretion of the judges.
demanded in the note of issue. If a party served with a note of issue not containing the demand wants a jury trial, it must then file a demand for trial by jury. If no party demands trial in one of these ways, trial by jury is waived. As CPLR section 4101 enumerates the actions triable by jury, CPLR section 4102 may operate to preclude a jury trial in actions that join a claim for relief that is triable of right by jury with one that is not.
A. Legal and Equitable Claims Arising Out of the Same Transaction
Where a plaintiff who wants a jury trial pleads law and equity claims which are based upon the same transaction, CPLR sections 4101 and 4102 come into play and courts interpreting these rules have created several contours to consider. The general rule has been that the right to a jury trial is waived when a plaintiff mixes legal and equitable claims arising from the same transaction.
Another general rule has evolved: if the equity claims are imperatively required to afford full relief to the pleader, or if the primary thrust of the action is equitable, then there is no right to a jury trial. If on the other hand, the equity claims are incidental to the legal claims, such that money damages alone would afford full relief to the pleader, then the pleading of those incidental equitable claims is no bar to a jury trial. The test to determine whether equitable claims are “incidental”, as stated by the Appellate Division, is:
If, in fact, a sum of money alone can provide full relief to the plaintiff under the facts alleged, then there is a right to a jury trial….That equitable relief under similar circumstances may be available is not the determinant. What is critical is whether the facts pleaded in the particular case ‘imperatively require’ equitable relief or whether under those facts the requested relief of money damages only can also provide full redress.
In other words, and by way of example, a plaintiff who calls upon the court to order specific performance of a contract for the fifty unique widgets he did not receive will not be fully redressed by fifty dollars -- full redress would only be achieved by the court’s order to the defendant widget salesman to specifically perform under that contract. Equity is imperatively required to afford complete relief to that plaintiff. This scenario played out in Daley v. The Related Companies, where the underlying action concerned the plaintiff’s employment contract, which provided for money damages in the event that certain tax shelters were not available. The court reasoned that the plaintiff’s ability to take advantage of the tax benefits provided for in the contract would require the court to order specific performance, not merely money damages. The court thus held that the primary relief sought was equitable, as an order of specific performance was imperatively required to afford complete relief to the plaintiff, and because it was the plaintiff who demanded the jury trial, the demand was stricken.
The mixing of imperatively required equity claims with legal claims causes a plaintiff to waive the right to a jury trial; however, where the equitable claims pleaded are merely incidental to legal claims, such that money damages would provide complete relief, the plaintiff is entitled to have his case heard by a jury. The court’s holding in the case of Greenfield v. Philles Record, Inc., also a First Department case, sheds light on the distinction between those equitable claims which are merely incidental and those which are imperatively required to afford complete relief to the plaintiff.
In Greenfield, the plaintiffs, the former members of the singing group “The Ronettes,” brought suit against a record company for breach of contract and conversion, and asserted a cause of action for a constructive trust on money the defendants allegedly retained improperly. The cause of action for imposition of a constructive trust was incidental to the causes of action for breach of contract and conversion, as money damages could afford full relief to the plaintiffs. The plaintiffs would have consequently been entitled to a trial by jury, but they then amended their complaint, adding a cause of action for rescission of the contract at issue. Money damages would no longer provide complete relief to the plaintiffs because they also sought ownership of the master recordings. The court held that the equitable claim for rescission was imperatively required to obtain full relief and therefore the plaintiffs waived their right to a jury trial.
Whether equitable relief is imperatively required and what constitutes the gravamen, main thrust or primary character of the action, is a mature, discretionary decision predicated upon what the particular pleader primarily seeks. It is simply not enough for the court to count up the number of equitable and legal causes of action to decide this issue. In Benn v. Benn, for example, the plaintiff’s causes of action were for an accounting, constructive trust, fraud, conversion, piercing the corporate veil, and a declaratory judgment. The trial court applied the proper test and concluded that the plaintiff’s breach of contract and tort claims for fraud and conversion were the true basis for this lawsuit. The demand for an accounting, constructive trust, piercing the corporate veil and a declaration of title to the apartment in dispute were incidental to the plaintiff’s legal claims. Clearly, the Benn court did not count the number of causes of action that devolved from equity to reach the results that it did in holding that trial by jury had not been waived.
Likewise, the mere use of an historically equitable procedure does not control the analysis. The interpleader, for example, has equitable origins. In Geddes v. Rosen, the court made clear that although the procedure of interpleader developed in equity, the interpleading plaintiff and interpleaded defendants would be entitled to a jury trial because the basic nature of the case was an action at law. Under the proper analysis, neither the designation of the cause of action as one in equity in the note of issue nor the use of interpleader could change the basic nature of the action.
Even further, a meticulous evaluation of the pleadings is necessary because the plaintiff’s demands in its prayer for relief are not determinative of the issue, as the Second Department in Hebranko v. Bioline Laboratories noted: “Where a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint’s prayer for relief will not constitute a waiver of the right to a jury trial.” The court reasoned that because the gravamen of the action was to recover damages for breach of an indemnity agreement, the character of the action was essentially legal and the fact that a demand in the prayer for relief was “partially equitable in nature” did not alter the result. The result of this court’s analysis was controlled by the facts set forth or proved and not the demands in the prayer for relief.
As these cases illustrate, whether equitable relief is sought at all, whether equity claims are imperatively required for full redress and whether the primary character of the action is equitable requires careful analysis, whether it is asserted by the facts, in the prayer for relief or by the catch-all request for “such other and further relief as to this Court seems just and proper.” The foregoing reflects that the short-handed expression that mixing law and equity claims concerning the same transaction waives a right to a jury, truly and materially understates the reality that the pleading of incidental equitable claims does not prevent a plaintiff from demanding and having a jury trial.
B. Jury Demand By Defendant
The preceding section revealed the results of demands for jury trials that were initiated by plaintiffs in actions in which they had combined claims for legal and equitable relief arising from the same transaction. Under the proper analysis, where equity is imperatively required to afford full redress to the plaintiff, the plaintiff’s demand for a jury trial should be stricken; where the equitable causes of action are merely incidental to the legal relief sought, the plaintiffs’ demands for a jury trial should be granted. Where the defendant demands a jury trial in an action that combines claims for legal and equitable relief arising from the same transaction, the same analysis must control.
In Kaufman v. Brenner, the plaintiff demanded specific performance of a sales agreement or, alternatively, money damages representing the amount it would get from the defendant upon an award of specific performance. The court applied the proper analysis regarding the primary character of the case and concluded that the “main thrust of the action” was equitable. The court then held that the defendant was not entitled to a jury trial of the plaintiff’s legal causes of action. That the main thrust of the action was equitable vitiated the right to a trial by jury for both parties on all issues. Similarly in Downtown Art Co. v. Zimmerman, the defendant demanded a jury trial in an action in which the plaintiff had joined legal and equitable relief arising out of the same transaction. The First Department affirmed the lower court’s determination that the primary character of the case was equitable because neither party would be fully redressed by an award of money damages, and held that the defendant was not entitled to a jury trial on any issues.
In Gordon v. Continental Cas. Co., the plaintiff attempted to characterize its claims as equitable, but the court utilized the proper analysis and determined that the pleaded facts established a legal claim for relief. The court laid down the general rule with respect to the defendant’s right to a jury trial in actions seeking both legal and equitable relief: “the defendant is entitled to a jury trial if the issues for resolution are legal…the defendant is not so entitled if the legal relief is sufficiently incidental to equitable relief such that, at common law, the chancellor had jurisdiction over the entire matter.” In determining that the action was essentially legal, the defendant’s jury demand was granted.
In L.C.J. Realty Corp. v. Back, however, a contrary result was reached when the court did not employ a similar analysis concerning the combination of legal and equitable causes of action arising from the same transaction. The plaintiffs’ first cause of action seeking specific performance was grounded in equity and the second, seeking money damages, was grounded in law. The court did not pass on whether the plaintiffs waived their right to a jury trial and merely noted that by joining these claims the plaintiffs may have waived it -- but, the court then brusquely stated that the plaintiffs could not “thereby deprive defendants Back of their right to a jury trial of all issues so triable.” The defendants were granted a jury trial. It is worth noting that these defendants had injected counterclaims, which can appear to change the results flowing from the proper analysis. It possible that the jury trial was actually granted on the counterclaims that the court found to be primarily legal. As the Back case illustrates, contrary results can be reached when the proper analysis is not utilized by the courts.
Once the court determines that the primary character of the action is legal and money damages would afford full relief to the pleader, and any equitable claims are merely incidental, the defendant’s demand for a jury trial should be granted.
Without engaging in the proper analysis, it is inaccurate to say that the plaintiff’s complaint cannot deprive the defendant of a jury trial. Where the main thrust of the action is equitable, the defendant does not have a right to a jury on the incidental legal issues arising in the main action. Though the analysis does not change, the results truly become divergent when defenses and counterclaims are …show more content…
interposed.
C. Equitable Defenses and Equitable Counterclaims
Results become divergent following the use of the proper analysis when counterclaims and defenses are pled because CPLR section 4101 disconnects equitable defenses and equitable counterclaims from the main action and because CPLR section 4102(c) specifically provides that legal counterclaims that are injected into an equitable action are triable by a jury.
Commentators and courts have noted that because certain equitable defenses were statutorily required to be tried by jury prior to the adoption of the 1894 Constitution, the deprivation of a jury trial for all equitable defenses is arguably unconstitutional.
Under CPLR section 4101, when a plaintiff brings a legal action, the defendant’s equitable counterclaims should not be submitted to a jury. Under CPLR section 4102(c), when a plaintiff brings an action sounding in equity, the defendant’s legal counterclaims should be tried by a jury if so demanded. The counterclaims pled by a defendant enjoy the same careful analysis as the claims contained in the plaintiff’s complaint. The rule remains: a pleader waives the right to a jury trial by joining legal and imperatively required equitable counterclaims arising out of the same
transaction.
Where a plaintiff brings a law claim, some courts have held that the defendant waives its right to a jury trial on the main action when it brings related imperatively required equitable counterclaims. In Seneca v. Novaro, the plaintiff brought an action to recover a debt due to him -- a legal action. The defendant answered by defense and counterclaim, alleging that the plaintiff, in breach of his fiduciary duty, held thirty shares of stock as security for the repayment of the debt and prematurely sold the stock for a fraction of its market value. The defendant sought an accounting and demanded a jury trial. The court determined that the gravamen of the defense and counterclaim sounded in equity and held that when a defendant interposes an equitable counterclaim related to the legal action, the defendant has waived a jury trial even on the main claim.
Other courts have held that the defendant’s right to a jury trial on the main claim is preserved on the theory that a contrary holding would only encourage the defendant to bring his equitable claim separately. In International Playtex, Inc. v. CIS Leasing Corp., the plaintiff brought an action sounding in law and demanded a non-jury trial. The defendants asserted equitable counterclaims related to the main action and demanded a jury trial. In deciding whether the injection of equitable counterclaims waives the defendants’ right to a jury trial on the main action, the court noted that to preserve the right to a jury trial on the main action the defendants would have to have commenced a separate action to assert the equitable counterclaims, which flies in the face of judicial economy, predictability and consistency. The court held the defendants’ assertion of related equitable counterclaims should not operate as a waiver of the right to a jury trial on plaintiff’s or defendants’ legal claims.
Frequently, when a plaintiff brings an action joining claims for legal and equitable relief, it is because the facts of the transaction giving rise to the legal claims are the same set of facts as those that gave rise to the equitable claim. When the defendant’s counterclaims put the same transaction at issue, the facts giving rise to the counterclaims raise issues which are likely to be the same as those at issue in the main action and also in the plaintiff’s reply to those counterclaims. When the facts to be heard in situations like that are so “intertwined” some courts have held that one trial of all issues before a jury is warranted.
The right to a trial by jury is fundamental to the New York system of jurisprudence and whether litigants have waived that right warrants a detailed analysis. What the foregoing indicates is that there is a careful and complex analysis that is meant to be employed by the courts when faced with suits sounding in both law and equity, whether in plaintiff’s pleading or by defendant’s answer, and whether through defense, cross-claim or counterclaim.
In England, however, non-jury civil trials have become the default. There is no careful analysis to be employed. Even though there are categories of cases triable of right by a jury, the ultimate decision rests with the discretion of the judges.