Section 805.01. Jury trial of right.

 

(1)   Right preserved. The right of trial by jury as declared in article I, section 5 , of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate.

(2)   Demand. Any party entitled to a trial by jury or by the court may demand a trial in the mode to which entitled at or before the scheduling conference or pretrial conference, whichever is held first. The demand may be made either in writing or orally on the record.

(3)   Waiver. The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

Judicial Council Committee Note, 1983: The time deadline for demanding a jury trial is the scheduling conference where that occurs before or in lieu of the pretrial conference because knowledge of the mode of trial is required for proper scheduling. [Re Order effective July 1, 1983]

A legal counterclaim in an equitable action does not necessarily entitle the counterclaimant to a jury trial. An amendment by the plaintiff from equity to law does not necessarily entitle the defendant to a jury trial if the equitable action was brought in good faith. Tri-State Home Improvement Co. v. Mansavage, 77 Wis. 2d 648 , 253 N.W.2d 474 (1977).

A party is entitled, as a matter of right, to a jury trial on a question of fact if that issue is retried, regardless of an earlier waiver. Tesky v. Tesky, 110 Wis. 2d 205 , 327 N.W.2d 706 (1983).

When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde, 185 Wis. 2d 377 , 518 N.W.2d 265 (Ct. App. 1994).

Absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time the stipulation is made. Walworth County Department of Health and Human Services v. Roberta J. W. 2013 WI App 102 , 349 Wis. 2d 691 , 836 N.W.2d 860 , 12-2387 .

When a jury trial was properly demanded by the plaintiff under sub. (2), the defendant's 3-year delay after the litigation began before raising the right to a court trial was a forfeiture of any right the defendant may have had to a court trial. In addition, the untimely demand for a court trial is a waiver under sub. (3) of the right to contest the manner of trial. Parsons v. Associated Banc-Corp, 2016 WI App 44 , ___ Wis. 2d ___, ___ N.W.2d ___, 14-2581 .

The party seeking to enforce a contractual waiver of a right to a jury trial has the burden of showing that the person against whom the waiver is asserted had actual knowledge of the rights being given up, including that the person was giving up his or her right to a jury and in what specific circumstances that would occur. The following non-exclusive list of factors may be considered when determining whether a contractual jury waiver was made knowingly and voluntarily: 1) the parties' negotiations concerning the waiver provision, if any; 2) the conspicuousness of the provision; 3) the relative bargaining power of the parties; and 4) whether the waiving party's counsel had an opportunity to review the agreement. Parsons v. Associated Banc-Corp, 2016 WI App 44 , ___ Wis. 2d ___, ___ N.W.2d ___, 14-2581 .

The new Wisconsin rules of civil procedure: Chapters 805-807. Graczyk, 59 MLR 671.

See also the notes to Article I, section 5 of the Wisconsin Constitution.