The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
Can I have a jury trial in Small Claims court? How many people on the jury?
Yes, you can have a jury trial in Small Claims court (under $10,000). The size of the jury is a bit uncertain right now, thanks to a recent court case, but a 12-person jury should be possible.
The right to a jury trial is guaranteed for almost every kind of court case. The one exception is for family-law cases, like divorce or custody cases. Trials in those cases are all “bench trials,” decided by a judge, and not a jury.
The original U.S. Constitution—before any amendments—just guaranteed a jury trial in criminal cases. It took the Bill of Rights to establish a right to a jury trial in civil cases. Specifically, the Seventh Amendment says: “In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved.”
The Illinois Constitution says that the right to a trial by jury “shall remain inviolate.”
To get a jury trial, you must request it ASAP. If you’re the Plaintiff, filing the suit, the Complaint you file must request one. If you’re the Defendant, getting sued, you must ask for a jury trial in your written answer, or at your first appearance in court.
That’s the only chance you get. If you don’t ask then, you can’t ask later, and get a bench trial. Until 2015, you could choose either a 6- or 12-person jury in civil cases. Then, the law changed to say you could only have a 6-person jury.
Just last month, the Illinois Supreme Court said that this change could not be squared with the state Constitution’s guarantee that the right to a trial by jury “shall remain inviolate.” The elimination of 12-person juries in civil cases were therefore unconstitutional.
The law hasn’t been rewritten to fix things. But if it’s unconstitutional to deny you a 12-person jury, you should have a right to a 12-person jury. Getting a 6-person jury if you wanted one may be trickier, since the law that permitted that was erased in 2015.
All jury decisions in Illinois must be unanimous. In federal court, it’s the same. But, about 30 states permit non-unanimous jury verdicts in civil cases.
If you want a jury trial, you should understand they’re hard work. Selecting and instructing juries are two extra layers of work you don’t have to mess with in bench trials.
Selecting a jury requires knowing how to get on the jury the jurors you want, and how keep off the jurors you don’t want. Using peremptory and cause challenges to do that isn’t easy.
Jury instructions can be even harder. They lay down the basic legal principles that the jury uses to make their decision. Not only must you draft your own set of instructions, you must convince the judge to send your version to the jury.
If you’re not prepared for that extra work, think seriously about a bench trial instead of a jury trial.