Most construction lawyers never try a single case before a jury. The first question is why. The second question is whether this trend is a net positive for construction professionals.

Why are jury trials rare for builders? The short answer is that only a tiny percentage of all civil cases filed end up going to trial. Most cases settle or are dismissed. The rest get assigned over to arbitration.

Statistically, the odds that your case will ever make its way to trial is, at best, one or two percent. Furthermore, in cases that do make their way to trial, the odds that a jury will be involved are lower still.

Most lawyers and clients are concerned that a jury just won’t get it. “Juries just come out of left field.” I heard that comment a few times before trying my first 12–person jury trial in a construction case two weeks ago. Builders, therefore, typically do not elect to have a jury trial.

Either side can pay the fee and elect to have a jury trial, but usually, both sides skip this step. They figure that jury trials are long, expensive, and difficult. Which leads us to the second question.

Is the Lack of Jury Trials Positive?

In our case, which concerned a rockery that would cost less than $100,000 to repair, it took the better part of a day just to select the jury. This process is called voir dire, and it means “to say all” in French. Jurors, before they are selected, are supposed to reveal whether or not they think they can remain unbiased in a particular case. In our case, the room filled with 45 strangers, sitting in the gallery. Both lawyers get to ask questions and try to weed through the jury pool. It ends up looking a lot like a talk show. There is a Phil Donahue element to it. My first question: “Will anyone who has hired a contractor raise his or her hand?” Eighty percent of the hands went up.

Eventually, both lawyers get to strike up to four jurors. The process really boils down to whether the lawyer and client think that a given juror will vote in their favor. Unfortunately, this process turns into one of stereotyping since you don’t really get the time to sit down and discuss anything of substance with 45 randomly selected people who really don’t want to be there in the first place. They have all been summoned to appear. Most hold down jobs, care for family members, and decided to show up because, at the bottom of the summons, it says that if you do not appear, a warrant can be issued for your arrest.

Prior to voir dire, the court provides very basic background information provided on small cards (that guy is a computer programmer, and has never been arrested, age 42; that woman sells copiers, age 56, no arrests, etc.). Between that and their answers to some general questions, you start striking jurors sitting in the “box” (where the first twelve sit). And with each strike, someone new enters, until the pool is finalized.

This process alone is expensive and more of an art than a science (though entire industries have cropped up in advising on jury selection in multi-million dollar cases). And even then, in civil cases, ten out of twelve jurors must agree on a verdict. If that fails, a hung jury results, and the case has to start all over again, with a new jury.

So most lawyers and clients decided against a jury trial. Instead, they trust their cases to a single judge. Judges are typically homeowners. They are never, or almost never, contractors or builders either. So for the construction professional, which route is best?

Pros and Cons of Jury Trials

It all depends on the case: who the opponent is, and whether you think selecting a jury will add leverage towards settlement. But the real answer is you may have no choice. Almost all contracts that industry professionals enter mandate arbitration. Even if the case is filed in Superior Court, the case is immediately stayed, and assigned to arbitration. And when arbitration is not mandatory, many contracts I’ve reviewed contain an express waiver of a jury trial. So the choice may never even float across your radar.

As a lawyer, I will say that going through a jury trial was an incredible experience. After the jury rendered its verdict, we got the chance to discuss the case with any jury member who chose to stick around. Most did. And we learned that they picked up on a number of issues that neither lawyers covered in detail.

One of the jurors worked at a coffee shop. I asked him how he managed to take a week off for trial. He didn’t. He just started his day at 4:30 a.m., worked the first shift before trial, and worked the late shift after. Coffee was not allowed in our courtroom however. Which means when it looked like he was sleeping (while the other lawyer presented his case), I took that as a positive sign for us. And this juror did end up on our side, but I was wrong about why. It was a lack of caffeine.