Why All The Jury Waivers? 

by Lauren Martin, risk management and claims specialist

In the last few weeks, every contract I’ve reviewed has included the waiver of a jury trial.  I used to see them now and then, but the prevalence of them recently seems to be a new development to me.  While I don’t believe the provision creates a coverage issue, it has me scratching my head.

Why all the apprehension of juries these days?  In my experience, they like design professionals and get it right at least as often as Judges do, and with a jury trial as opposed to a bench trial there are frequently more avenues for appeal should something go wrong.

Arguably a bench trial can be somewhat cheaper as they move more quickly, but I’m not sure that benefit is worth the trade.

While I’m sure that there are opinions on this topic all over the place, design professionals as a group are people that juries tend to like and trust.  Although they may not always understand what you do, nor do most judges.

I’m not suggesting that you challenge this provision, but I am suggesting that you recognize it as a win for the owner, developer, or governmental entity that a jury may not feel as kindly towards.  Use your agreement to this provision to negotiate other, more problematic, terms.

Ames & Gough, as your insurance and risk management advisor, is providing this update to assist you in your risk management efforts. While insurance is a critical component of any risk management and risk financing plan, the most important thing your organization can do is to work to prevent or minimize losses before they occur. If you have any questions or need further information about this topic and related issues, please contact your Ames & Gough client executive. 

About the Author: Lauren Rhodes Martin is risk management and claims specialist focusing on the firm’s architect and engineer accounts. In her role, Lauren, who is based in the Ames & Gough Washington, DC office, works directly with the firm’s partners and client executives on all aspects of design firm clients’ risk management, including contract reviews, claims advocacy, loss prevention training and advice. Prior to joining Ames & Gough, Lauren had a distinguished career of nearly 35 years at CNA, where she held positions of increasing responsibility in claims and client management, culminating with her appointment in 2018 as A/E Platinum Accounts Director. For more than three decades she was directly responsible for handling architect and engineer errors and omissions (E&O) claims.