U.S.: Judge Or Jury Trial For Maritime Actions

June 2003

In defending maritime claims one of the factors that has a major impact on the ultimate outcome of the case is whether the action proceeds to trial before a judge or jury. The determination of whether a case is tried before a judge or jury depends to some extent on where the case is filed i.e. in Federal or State Court. For example, a maritime claim brought on the "admiralty" side of Federal Court can be designated as a "maritime" claim by the plaintiff under Rule 9(h) of the Federal Rules, thus insuring that the case is tried to the bench with no jury. Until 1999, Louisiana had a rule similar to Federal Rule 9(h), Louisiana Code of Civil Procedure Article 1732(6), which was repealed in 1999.

In cases filed in Federal Court, as well as cases arising out of an accident which occurred in Louisiana prior to August of 1999, the plaintiff can designate whether the case is tried to a judge or jury. In maritime cases arising out of an accident or dispute after 1999, the defendant has a right to request a jury trial if the plaintiff has not done so. The determination of which forum to file suit, based primarily whether the plaintiff wants to proceed before a judge or jury, is one of the paramount decisions a plaintiff's attorney must consider.

Civil juries are inherently unpredictable, particularly in a personal injury claim. In addition, juries in certain locals are considerably more favorable to the victim of an accident than juries in other more conservative locals. As examples, the jury venire in south Texas, Civil District Court in New Orleans and Jefferson County, Texas are composed primarily of minority and/or "blue collar" jurors, who seem to feel fairly sympathetic to an injured plaintiff and have no reservations to open the pocket book of a large corporation or insurance company to award significant damages in a "redistribution of the wealth" mentality.

In addition to the general reputation of the juries in a particular locale, other factors in determining whether to request a trial by jury or judge include the race or ethnic background of many of the participants in the case, including the plaintiff, judge, plaintiff's attorney and critical witnesses. Insofar as the judge is concerned, knowing the reputation of the judge as either being liberal or conservative is tantamount to the election of a judge or jury trial. Defense counsel must also ascertain the relationship between the plaintiff's counsel and the judge, a co-defendant's counsel and the judge, as well as determine whether the plaintiff is a constituent of the judge. All of these factors must be considered in determining whether the trial judge has some inherent bias either in favor of or against a party to the case or their counsel.

Defense counsel must not only have an intricate knowledge of and understand the make-up of the trial judge and jury pool in all jurisdictions in which they practice, but should also consider whether a pre-emptive strike is appropriate in handling claims to attempt to have the matter brought in a more favorable jurisdiction, even if a judge trial is the only option. For example, filing Declaratory Judgment Actions in favorable Federal Court venues with respect to the issue of maintenance and cure may avoid a claim being filed by an injured plaintiff in an unfavorable venue. Many a legal battle are fought attempting to remove cases filed in unfavorable venues, whether due to the jury or judge, which can be costly. If the judge in that forum is plaintiff friendly, the venue issue is usually one that is not decided in the defendant's favor and is one left for appeal.

Suffice it to say, counsel instructed to represent ship owners must be well versed in whether a jury trial is available, whether it is preferable to a judge trial if so designated by the plaintiff and, most importantly, the evaluation of the potential judgment value of the case given the jurisdiction and propensities of the judge and/or juries in that locale.

 

With thanks to Charles A. Mouton of Preis, Kraft & Roy for preparing this article.