Werner Sabo is a partner at the construction law firm of Sabo & Zahn in Chicago. He is also a licensed architect, having practiced architecture for a number of years prior to establishing his law practice in 1981. He is a member of the AIA and CSI, has been an officer and director of the Chicago Chapter AIA, President of the Chicago Chapter, Construction Specifications Institute, and writes a monthly construction law column for The Construction Specifier. He is also a founding member of the Society of Illinois Construction Attorneys. In 1997, the AIA elected him to the College of Fellows. His book, Legal Guide to AIA Documents, published by Aspen Publishing, is in its fourth edition. Mr. Sabo is also a construction arbitrator and mediator for the American Arbitration Association and is admitted to the federal trial bar.
James K. Zahn is a licensed architect and attorney in the State of Illinois. He is a partner in the law firm of Sabo & Zahn, concentrating in construction law and representing owners, contractors, architects, developers, engineers and other parties in the construction process. He received a Bachelor of Architecture from the University of Illinois and his JD from Chicago-Kent College of Law. Mr. Zahn is a member of the American, Illinois and Chicago bar associations, American Institute of Architects, Association of Licensed Architects, Construction Specifications Institute and has NCARB Certification. He was a past president of the Illinois Council of the American Institute of Architects and is a Fellow of both the American Institute of Architects and the Association of Licensed Architects. He is currently a resource member of the AIA National Documents Committee.
Shawn E. Goodman is a partner with Sabo & Zahn. He concentrates in litigation of all types. A graduate of the Northwestern University School of Law, he was admitted to the bar 1993. Since that time, he has practiced before local and outlying circuit courts, U.S. District Court, and various administrative tribunals. He has acted on behalf of a variety of clients including small to mid-sized businesses and individuals. He has handled all facets of litigation from pleading to motion practice to discovery to trial. The cases with which he has been involved are varied and wide-ranging and include personal injury, breach of contract, criminal defense, commercial disputes, and consumer fraud. He has represented both plaintiffs and defendants and has practiced before juries as well as judges. Mr. Goodman has also worked on appeals and has assisted in the drafting of appellate briefs.
California: No contractual jury waiver
The California Supreme Court, on August 4, 2005, in Grafton Partners v. Pricewaterhousecoopers, held that a waiver of a right to a jury trial contained in a contract was not enforceable. The California Constitution states:
Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.
The applicable statute lists 6 grounds for waiving a jury trial, none of them including a pre-dispute contractual provision. An attempted analogy to agreements to arbitrate failed because arbitration is permitted by statute, and because an agreement to arbitrate means that the parties are not submitting their controversey to a court of law in the first instance. The court held that, "unless the legislature prescrives a jury waiver method, we cannot enforce it."
The court also reviewed the laws of other jurisdictions, noting that New York enforces predispute jury waivers and that the applicable California statutes were modeled on New York law, but declined to follow New York.
The concurring opinion noted that only one other supreme court -- Georgia -- would not allow predispute waivers of a right to a jury.
These types of waivers are usually seen in contracts where there is a disparity in bargaining positions. Often, these are take-it-or-leave-it propositions. It will be interesting if courts in other states continue to side with the big corporations or help the little guy by adopting this California approach.
