Select Page

Civil Procedure II
Southern Illinois University School of Law
Adams, Jill E.

Civil Procedure II Outline 10/1/11 10:04 AM

Right to a jury trial

· A jury is present in the trial if:

o At least one party asks for it.

§ Federal: FRCP 38.

ú Must be made within 14 days of last pleading directed to the issue.

· Unless “good cause shown.” FRCP 6.

§ Illinois: 735 ILCS 5/2-1105.

ú Plaintiff must demand when action is filed.

ú Defendant must demand no later than filing of the answer.

· Unless: If plaintiff later waives, defendant can file a demand “promptly.”

o The action is one in which a jury trial is constitutionally guranteed.

§ Federal

ú Governed by Seventh Amendment, which grants jury trials like they were in common law England in 1789 if the amount in controversy is greater than $20.

· If action existed at law in 1789 England, jury trial is guaranteed.

o (1) money damages

o (2) ejectment

o (3) replevin

· If the action existed at equity in 1789 England a jury trial is NOT guaranteed.

o (1) injunction

o (2) specific performance

o (3) constructive trust

o (4) reformation of a contract

o (5) rescission of a contract

o (6) foreclosure of a mortgage.

· If the cause of action did not exist at all in England in 1780, two step process:

o FIRST: Is it analogous to an action that existed in common law England? If so, analogize to that action and grant or deny jury trial based on that. If not, proceed to second factor:

o SECOND (more important): Look to the type of relief demanded.

§ If there is a remedy at law, the action is in law and a jury trial is guaranteed.

§ If there is NO adequate remedy at law, the action is in equity and no jury trial is guaranteed.

§ Law and equity are merged in the federal system under the rules, so just because a procedure was usually in equity, that doesn’t determine the jury trial analysis.

· If the action is for a declaratory judgment, look to the type of relief granted.

· This characterization of “law or equity” is a matter of procedural law, so Erie says federal determinations are made.

o If public rights are concerned, Congress can defer the determination to an agency. This does NOT violate the right to a jury trial.

· If one claim is equitable and another is legal, the legal count still receives a trial by jury, even if the equitable one does not.

§ Illinois

ú The Illinois consitution has a separate guarantee of a jury trial, but the Seventh Amendment doesn’t apply.

ú Like the Seventh Amendment test, the Illinois analysis is historical – we look to actions in 1818 common law England.

· BUT we do not try to analogize to historical actions. If the action did not exist in 1818, it does not grant a jury trial.

ú Suggest: removing to federal court and getting a jury there.

Jury Procedure

· Choosing a jury

o FIRST: A pool of jurors is summoned (array).

§ 28 USC 1863-64 & 1866 govern how the array is chosen.

ú Use one of:

· Voter registration rolls

· Drivers license list


· (2) Person using the peremptory must articulate a race/sex-neutral ground for the exclusion of the juror. If they fail to, the challenge is successful.

· (3) Judge determines whether the neutral ground is a mere pretext. If so, challenge is successful; if not, challenge fails.

ú On appeal, judge gets deference, but they can be overruled, especially if the neutral grounds apply to non-excluded jurors too.


· Judges can be challenged and substituted too. They’re super important, because the majority of cases don’t even get to a jury, and even if a certain case does, the judge still has a huge role to play.

o Federal

§ Challenges only ok for cause

ú By a party: 28 U.S.C. 144

· If a party files a

o Timely

o Sufficient

o Affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party, the judge cannot continue, but another judge will do the proceeding.

· Usually, the grounds are those in 28 USC 455

ú By a judge: 28 USC 455

· Judges are to recuse themselves if they’re involved in a proceeding in which their impartiality might reasonably be questioned.

o Broadly interpreted.