Judge Trial vs. Trial by Jury

I believe you're talking about civil cases. The Seventh Amendment does not apply to state courts. Many cases are decided on summary judgment motions. Most legal claims for money damages (the ones that survive summary judgment proceedings) are settled before trial. Equitable claims are not tried by jury. Even though a jury trial is more expensive than a bench trial, I don't believe there is a problem that would warrant the "solution" you suggest. It is the threat of facing a jury and the unpredictability of juries that foster settlement. And compromises and settlements are generally considered to be good things.

To the extent that the government would desire to pay someone to waive a right (even a right secured by a constitution), I don't think that would be unconstitutional per se. For a multitude of reasons, people agree to waive their rights all the time.

Debra-

Thank you.

I was speaking of civil cases when I spoke to plaintiffs and of criminal cases when I referred to defendants.

As to your statement that the Seventh Amendment does not apply to state courts, my understanding is that since the ratification of the 14th Amendment, the States have been subject to the first 10 amendments.

Yes, many cases are decided on summary judgment motions. I don't believe that point is at issue.

As to most legal claims for money damages (the ones that survive summary judgment proceedings) being settled before trial, I did not know that. If it is true, I think it may result from the plaintiff wish to avoid the costs of trial or both parties not wishing to accept the risk of losing at trial.

As to your statement "[e]quitable claims are not tried by jury, according to http://www.west.net/~smith/equity.htm :

The right to a jury trial is founded in the Seventh Amendment. That amendment does not "create" the right to jury trial. Rather it "preserves" the right as it existed at common law in 1791 the date of the Seventh Amendment's ratification. Historically, there was no right to a jury trial for equitable claims. Although the Federal Rules abolish the procedural distinctions between law and equity and substitute a single form of action, (F.R.C.P. 2) they do not abrogate the differences between the substantive and remedial rules of the two systems.

Since a party may now enter a single court with both legal and equitable claims the question recurs as to when there is a right to a jury trial. In federal courts, F.R.C.P. 38(a) expressly grants the right to a jury trial and equitable causes of action are treated as incidental to the legal causes of action so that the right to a jury trial is preserved. (See, Dairy Queen, Inc. v. Wood 369 U.S. 469 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) and Ross v. Bernhard 396 U.S. 531 90 S.Ct 733, 24 L.Ed.2d 29 (1970).

Although the thrust of the Seventh Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. The Seventh Amendment applies to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). (But see, Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) [jury trial not available under the Age Discrimination in Employment Act.])

An exception to the federal approach to preferring jury trials is with respect to complex issues, such as patent suits. (See, Markman v. Westview Instruments, Inc., ___ U.S. ___ (1996). In California, the right to a jury trial is guaranteed by the state Constitution. (Cal.Const., art. I § 16.)

The right to a jury trial is founded in the Seventh Amendment. That amendment does not "create" the right to jury trial. Rather it "preserves" the right as it existed at common law in 1791 the date of the Seventh Amendment's ratification. Historically, there was no right to a jury trial for equitable claims. Although the Federal Rules abolish the procedural distinctions between law and equity and substitute a single form of action, (F.R.C.P. 2) they do not abrogate the differences between the substantive and remedial rules of the two systems.

Since a party may now enter a single court with both legal and equitable claims the question recurs as to when there is a right to a jury trial. In federal courts, F.R.C.P. 38(a) expressly grants the right to a jury trial and equitable causes of action are treated as incidental to the legal causes of action so that the right to a jury trial is preserved. (See, Dairy Queen, Inc. v. Wood 369 U.S. 469 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) and Ross v. Bernhard 396 U.S. 531 90 S.Ct 733, 24 L.Ed.2d 29 (1970).

Although the thrust of the Seventh Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. The Seventh Amendment applies to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). (But see, Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) [jury trial not available under the Age Discrimination in Employment Act.])

An exception to the federal approach to preferring jury trials is with respect to complex issues, such as patent suits. (See, Markman v. Westview Instruments, Inc., ___ U.S. ___ (1996). In California, the right to a jury trial is guaranteed by the state Constitution. (Cal.Const., art. I § 16.)

As to the unpredictability of juries, you mean the danger of false negatives and false positives? Are not judges better at finding the facts and deciding verdicts?

To be induced to compromise because of the risk that the jury will "get it wrong," I think is a defect of the present system.

Not all amendments set forth in the Bill of Rights have been incorporated into the 14th and made applicable to the states. Of the first eight amendments, some have been incorporated in full. Some in part. And one not at all. The Ninth Amendment is a rule of construction. The Tenth Amendment sets forth the division of powers between the federal government and state governments. You may google "incorporation doctrine" and learn more about matter. The Seventh Amendment's right to a jury trial in civil cases has not been incorporated and is not applicable to the States. The States have their own provisions on jury trials.

if its a criminal trial you would want to chose a jury trial because every single one of those jurors would have to be convinced of the defendants guilt or its a unanimous resulting in a mistrial or a case dismissed

Uh, no. There are criminal cases in America where unanimity is not a requirement.

http://www.csmonitor.com/USA/Justice/2013/0219/Unanimous-juries-for-criminal-convictions-Supreme-Court-declines-case

kleinmk5-

Thank you.

I was asking from the perspective of the society as a whole in achieving a decision consistent with the facts and the law.

your welcome

if you have any questions feel free to inbox me I know how the courts work i been dealing with them a long time