Employers and other defendants got a big win last week at the appellate court in Connecticut. In Palumbo v. Barbadimos (you can read the opinion here) the appellate court held that the defendant-employer had obtained a “vested right” to a trial before a judge once the plaintiff failed to claim a jury trial within the 10 day statutory time limit. Connecticut requires parties to file a jury claim within 10 days of the last pleading being filed to preserve the constitutional right to a jury trial. A party can file the claim sooner, but that wasn’t the issue here. In fact, the issue was whether the court should permit an employer-defendant to restore a case to the docket, after the plaintiff withdrew the case. You see the plaintiff had forgotten to file a jury claim, and so she withdrew her first case in order to file a new one and get a second bite at the jury apple. The court called the plaintiff’s antics “chicanery” and restored the first case to the docket.
At first glance this ruling does not seem like a big deal. But employers, and defendants in general, typically do better in judge – or bench trials -than in jury trials. So I see the case as having potentially huge implications. In fact, one statistic shows that in state court plaintiff-employees in discrimination cases win only 26% of the time before a judge, while they win 47% of jury trials. Employers don’t want to go before a jury because jurors and the plaintiff will always have one thing in common: they’ve worked for somebody else in their lives at least once, and probably have experienced negative issues with a boss or two.
Before this case, if a plaintiff failed to claim a jury trial within the 10 day statutory limit, typically judges would allow the late jury claim, sometimes as late as several weeks.
Now the employer has a new weapon against a late jury claim: a vested right in a courtside trial. It sounds weird just saying it, but that’s what the appellate court said. Our prediction is more and more courts will now strike late jury claims, and more cases will be tried before judges.
