Jury Trial Waiver by State: Are They Enforceable? (2026)

The clause clients never read

A contractual jury trial waiver is a sentence, often buried in a master services agreement or a lease, that sends any future lawsuit to a judge instead of a jury. Whether a court honors it depends on the state. In a handful of states it will not honor it at all.

That is why "is my jury waiver enforceable" has no single national answer. State law decides most of it, federal courts add their own rules, and the circuits disagree about who has to prove what. This page is a map built from statutes and opinions we read in October 2026. Each row of the table is either tied to an authority or marked as not verified.

Reviewed and corrected on 6 October 2026. This is general information, not legal advice; check the cited statute or opinion before relying on it.

One rule before anything else. If the contract may be governed by California, Georgia or North Carolina law, a jury waiver will not do the work you want it to do. Arbitration, a judicial reference where the state allows one, or an agreement to a bench trial after the dispute starts are the usual alternatives. Arkansas and Oklahoma need a closer look, and so do Montana and Nebraska, where statutes point the same way. All four are covered below.

Official text, as of 6 October 2026

California Code of Civil Procedure section 631(a): "In civil cases, a jury may only be waived pursuant to subdivision (f)."

Subdivision (f) lists six ways a party waives a jury in a California civil case: failing to appear at trial, written consent filed with the clerk or judge, oral consent in open court entered in the minutes, failing to announce that a jury is required when the case is first set for trial, failing to pay the jury fee on time, and failing to deposit the daily jury fees from the second day of trial. A clause in a contract signed before any dispute is not on the list. The California Supreme Court held that in Grafton Partners L.P. v. Superior Court, 36 Cal. 4th 944 (2005), when the same list sat in subdivision (d) of the section.

Official source: Cal. Code Civ. Proc. § 631 on the California Legislature's site. The section's history line reads "Amended by Stats. 2012, Ch. 342, Sec. 1. (AB 1481) Effective September 17, 2012."

What changed in 2026: nothing in this section. The history line ends in 2012.

Are jury trial waivers enforceable? The short answer

Yes in most states where we read a decision, with exceptions. Courts in those states enforce a clear contractual waiver signed before any dispute, and most ask in some form whether it was knowing and voluntary. The tests differ. Nevada borrows a four-factor list, the District of Columbia refuses to use a fixed list, and Colorado applies ordinary contract principles instead of the federal test.

Three states refuse to enforce the clause. California (Grafton Partners L.P. v. Superior Court, 36 Cal. 4th 944 (2005)) and Georgia (Bank South, N.A. v. Howard, 264 Ga. 339 (1994)) refuse by supreme court decision. North Carolina refuses by statute: N.C. Gen. Stat. § 22B-10 makes the clause unenforceable but still lets parties agree to arbitrate or use other alternative dispute resolution.

Two more states need a caveat. The Arkansas Supreme Court held pre-dispute jury waivers unenforceable in Tilley v. Malvern National Bank, 2017 Ark. 343, 532 S.W.3d 570. The legislature answered in 2018 with Ark. Code Ann. § 16-30-104, which makes a written jury waiver in a contract to borrow or lend money valid and enforceable. We read only that loan statute. In Oklahoma, the Court of Civil Appeals held in Home Vest Capital, LLC v. Retirement Application Services, Inc., 2020 OK CIV APP 15 (decided August 10, 2018), that the state constitution makes a contractual jury waiver void. The opinion shows a mandate date of June 17, 2020, and we found no Oklahoma Supreme Court opinion that follows or rejects it.

Two more states have statutes that point the same way, with no decision on a contract clause. Montana's Mont. Code Ann. § 28-2-708 voids a contract term that restricts a party from enforcing its rights "by the usual proceedings in the ordinary tribunals," and Nebraska's Neb. Rev. Stat. § 25-1126 lists three ways to waive a jury in a contract action, a list the Nebraska Supreme Court has called exclusive. We found no decision in either state applying those provisions to a jury waiver clause.

The jury trial waiver by state table below shows the authority we read for each state. Rows without one say so.

TL;DR

• In the states where we read a decision, courts enforce a clear pre-dispute jury waiver, usually asking whether it was knowing and voluntary. The tests differ from state to state.
• California, Georgia and North Carolina refuse to enforce a pre-dispute waiver. North Carolina does it by statute (§ 22B-10) and still allows arbitration.
• Arkansas enforces waivers in loan contracts by a 2018 statute after its supreme court refused them in 2017. An Oklahoma appeals court held them void under that state's constitution. Montana and Nebraska statutes point toward the same result, but we found no decision applying either to a contract clause.
• New York voids a lease clause waiving jury trial in an action between the parties for personal injury or property damage (N.Y. Real Prop. Law § 259-c). New Jersey's Atalese decision is an arbitration case, and the New Jersey authority we read on stand-alone jury waivers is a trial-court decision.
• Federal courts enforce knowing and voluntary waivers. The circuits split on who carries the burden: the Fourth Circuit puts it on the party enforcing the waiver, the Sixth and Fifth Circuits on the party resisting it.
• We could not verify 21 of 51 rows. They are marked "Not verified" in the table.

Part of our all-50-states legal reference series.

A note on methodology

This page covers the 50 states and the District of Columbia, 51 rows in all. For each row we either read a statute or a court decision and cite it, or we say the row is not verified. We read statutes on the official legislature sites and opinions from the Caselaw Access Project, court websites and Justia. A case is cited only for what we read it to hold. Unpublished and trial-court decisions are labeled.

A row marked "Not verified" does not mean the law there is unsettled or that waivers are void. It means we did not read a controlling authority in our October 2026 review. The groupings used below are descriptive, not statutory categories, and we make no count of how many states sit in each.

The federal baseline: FRCP 38 and a burden split

The Seventh Amendment preserves the right of trial by jury "in Suits at common law, where the value in controversy shall exceed twenty dollars." A party can lose that right by not asking for it. Federal Rule of Civil Procedure 38(d) says: "A party waives a jury trial unless its demand is properly served and filed." Rule 38(b) sets the deadline at 14 days after the last pleading directed to the issue is served. You can read the rule at Cornell's Legal Information Institute.

The contract clause is a separate question. Federal courts enforce a pre-dispute contractual waiver if it was made knowingly, intentionally and voluntarily. The Second Circuit puts it that way in Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171 (2d Cir. 2007), and treats federal law as the law that governs the waiver when the right is asserted in federal court.

Who has to prove the waiver was knowing and voluntary? The circuits disagree.

• The Fourth Circuit puts the burden on the party seeking to enforce the waiver (Leasing Service Corp. v. Crane, 804 F.2d 828, 833 (4th Cir. 1986)).
• The Sixth Circuit puts it on the party trying to avoid the waiver (K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 758 (6th Cir. 1985)).
• The Fifth Circuit joined the Sixth in Pizza Hut, L.L.C. v. Pandya, No. 22-40555 (5th Cir. Aug. 22, 2023). Once the party invoking the waiver shows a facially valid contract, the party objecting must show why the waiver is unenforceable. The court described the Second and Fourth Circuits as the other side of the split. The opinion is on the Fifth Circuit's site.

We did not research the other circuits, so check yours before you brief the point.

Pandya also lists four factors that courts commonly consider, which it called helpful but not exhaustive: whether both parties could negotiate the terms, whether the clause was conspicuous, the parties' relative bargaining power, and the business experience of the party opposing the waiver.

Fraud. A general claim that the whole contract was induced by fraud does not defeat the waiver. In Merrill Lynch the Second Circuit held that the waiver stays enforceable unless the party alleges that its agreement to the waiver itself was induced by fraud. The Fifth Circuit followed that reasoning in Pandya.

State law in a federal court. In In re County of Orange, 784 F.3d 520 (9th Cir. 2015), the Ninth Circuit held that the law governing pre-dispute jury waivers is procedural under Erie, so federal courts sitting in diversity apply federal law. But the court said they import state law as the federal rule "where, as here, state law is even more protective than federal law of the jury trial right." Applying California law, it held the contractual waiver unenforceable. The practical point is that removing a California-law case to federal court in the Ninth Circuit does not rescue a pre-dispute waiver.

The states that refuse or restrict

California

Grafton Partners L.P. v. Superior Court, 36 Cal. 4th 944 (2005), is the controlling case. The California Supreme Court held that section 631 sets the exclusive ways to waive a jury in a California civil case and that a pre-dispute contractual waiver is not among them. The decision also rests on article I, section 16 of the California Constitution.

A judicial reference is a different mechanism. Code of Civil Procedure section 638 lets a court appoint a referee on the motion of a party to a written contract that provides that any controversy arising from it shall be heard by a referee, if the court finds a reference agreement exists. Grafton applies when California law governs the waiver in a California court. A choice-of-law or forum clause can change which law applies, so read those clauses together with the waiver.

Georgia

Bank South, N.A. v. Howard, 264 Ga. 339 (1994), held that "pre-litigation contractual waivers of jury trial are not provided for by our Constitution or Code and are not to be enforced in cases tried under the laws of Georgia." The court read the Georgia Constitution and O.C.G.A. § 9-11-39 as contemplating waiver only once litigation is pending, and compared a jury waiver to a confession of judgment. Two Justices dissented. A few months later, in American Southern Financial, Ltd. v. Yang, 264 Ga. 513 (1994), the court applied Bank South to a commercial lease.

North Carolina

N.C. Gen. Stat. § 22B-10 reads: "Any provision in a contract requiring a party to the contract to waive his right to a jury trial is unconscionable as a matter of law and the provision shall be unenforceable. This section does not prohibit parties from entering into agreements to arbitrate or engage in other forms of alternative dispute resolution." Its history line cites session laws from 1993 and 1994. The text is on the North Carolina General Assembly's site.

Arkansas

In Tilley v. Malvern National Bank, 2017 Ark. 343, 532 S.W.3d 570, the Arkansas Supreme Court read the constitution's provision that a jury "may be waived by the parties in all cases in the manner prescribed by law" to mean that waiver has to come from a statute or rule. It found none for pre-dispute waivers and held the clause in Tilley's loan agreement unenforceable. The court noted that arbitration agreements are governed by the Arkansas Code and so are enforceable.

The legislature responded in 2018. Ark. Code Ann. § 16-30-104 says that a written provision in a contract to borrow or lend money in which the parties agree to waive their jury trial rights "is valid and enforceable except upon those grounds that exist at law or in equity for the revocation of any contract." The act applied to contracts signed before it took effect. The Arkansas Supreme Court later held that its mandate in Tilley's own case barred the trial court from applying the new act to him (Tilley v. Malvern National Bank, No. CV-18-1002 (Ark. 2019)). We read only the loan statute and did not check whether another statute covers other kinds of contract.

Oklahoma

The Oklahoma Constitution says: "Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void" (art. XXIII, § 8). In Home Vest Capital, LLC v. Retirement Application Services, Inc., 2020 OK CIV APP 15 (decided August 10, 2018), the Court of Civil Appeals applied that provision to a bank deposit agreement and held the trial court erred in enforcing a contractual jury waiver. It said the Oklahoma cases the bank cited involved arbitration agreements, which it treated as different. It also read 12 O.S. § 591 as covering waiver after an action has begun, not a blanket contractual waiver. The opinion is on Justia. This is an intermediate appellate decision. Its mandate issued on June 17, 2020, and we found no Oklahoma Supreme Court opinion that follows or rejects it.

Montana and Nebraska

Montana's statute reads: "Every stipulation or condition in a contract by which any party to the contract is restricted from enforcing the party's rights under the contract by the usual proceedings in the ordinary tribunals or that limits the time within which the party may enforce the party's rights is void. This section does not affect the validity of an agreement enforceable under Title 27, chapter 5." Title 27, chapter 5 is Montana's arbitration act. The text is on the Montana Legislature's site. A 2010 law-review article and a footnote in Home Vest both describe Montana as barring contractual jury waivers by statute, and the article cites this section. We found no Montana decision that applies it to a jury waiver clause.

Nebraska's statute reads: "The trial by jury may be waived by the parties in actions arising on contract and with assent of the court in other actions (1) by the consent of the party appearing, when the other party fails to appear at the trial by himself or herself or by attorney, (2) by written consent, in person or by attorney, filed with the clerk, and (3) by oral consent in open court entered upon the record." The text is on the Nebraska Legislature's site. In Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014), the Nebraska Supreme Court said that section 25-1126 "provides an exclusive list of the manners in which a waiver occurs" and noted that California courts take the same view where a statute lists the recognized waivers. Jacobson was about waiver by silence, not a contract clause, and we found no Nebraska decision on one.

What this means in practice

If the contract is governed by the law of any state above, or is likely to be litigated there, treat the waiver clause as unreliable. For Montana and Nebraska the warning comes from statute text, not from a decision on a clause. Plan for another mechanism: arbitration (North Carolina's statute, Tilley and Home Vest each treat it separately from a jury waiver), a judicial reference where available, or an agreement to a bench trial after the dispute starts. In California and Georgia a post-dispute stipulation works because the statutes and rules contemplate waiver once a case is pending.

Where waivers are enforced: what the courts ask

Courts that enforce pre-dispute waivers do not all ask the same questions. These are the tests we read.

• Nevada. Contractual jury waivers are "presumptively valid" unless the challenger shows the waiver was not knowing, voluntary and intentional. The court adopted four factors (negotiations over the clause, conspicuousness, bargaining power, and whether counsel could review the agreement) and said a court "may consider, but is not limited to" them (Lowe Enterprises Residential Partners, L.P. v. Eighth Judicial District Court, 118 Nev. 92 (2002)).
• District of Columbia. The court enforced a lease waiver and wrote: "We decline to endorse any specific list or catalogue of factors." The question is whether the waiver is unconscionable, contrary to public policy or unfair in the circumstances (Pers Travel, Inc. v. Canal Square Associates, 804 A.2d 1108 (D.C. 2002)).
• Massachusetts. Waivers are enforced unless unconscionable, against public policy or unfair. The clause in that case was "clear and, if not conspicuous, at least legible" (Chase Commercial Corp. v. Owen, 32 Mass. App. Ct. 248 (1992)).
• Texas. The Texas Supreme Court held a lease waiver knowing and voluntary as a matter of law on undisputed facts: six months of negotiation, a lawyer, and a bold caption. It said that "Assuming that a jury waiver provision must be conspicuous, an issue we need not decide here, this one was" (In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004)).
• Connecticut. A commercial jury waiver "is prima facie evidence that the party bound thereby intentionally has waived its constitutional right to a trial by jury." The party resisting it has to allege and come forward with evidence of a lack of intent to be bound (L & R Realty v. Connecticut National Bank, 246 Conn. 1 (1998)).
• Missouri. The court held that "a jury trial may be waived by contract," and that the waiver must be made knowingly and voluntarily (Malan Realty Investors, Inc. v. Harris, 953 S.W.2d 624 (Mo. 1997)).
• Colorado. The court declined to adopt the federal knowing-and-voluntary test, noting that Colorado has no constitutional right to a jury trial in a civil action, and enforced a franchise-agreement waiver under general contract principles (Colorado Coffee Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9 (Colo. App. 2010)).
• Florida. Contractual waivers are enforceable, and a trial court errs by ordering a jury "unless there is sufficient showing why the waiver should not be enforced." The tenant in that case gave no sign of overreaching or unconscionability (Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992)). A 2025 decision adds that a waiver must be made knowingly, voluntarily and intelligently, and is strictly construed (Pierre's Caribbean Cuisine LLC v. LeaseFlorida LLC, No. 3D24-0512 (Fla. 3d DCA Mar. 12, 2025)).
• Alabama. "If the bargaining positions of the parties are equal, ordinarily jury waiver agreements will be upheld," but waivers are strictly construed (Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala. 1982)).
• Tennessee. Pre-dispute contractual waiver "is not prohibited in Tennessee." The court left open the standard for enforcing particular clauses (Poole v. Union Planters Bank, N.A., 337 S.W.3d 771 (Tenn. Ct. App. 2010)).
• Wisconsin. A 4-2 Wisconsin Supreme Court held that a pre-litigation waiver in a promissory note was enforceable under ordinary contract principles, and that the bank did not need extra proof that the borrowers knowingly and voluntarily agreed to it. The waiver was in capital letters, and the note said in boldface that the borrower had read and understood it (Parsons v. Associated Banc-Corp, 2017 WI 37, 374 Wis. 2d 513, 893 N.W.2d 212).
• Idaho. The Idaho Supreme Court enforced a commercial lease clause that disputes be tried by the court without a jury, over a tenant's jury demand, and rejected the argument that both sides' jury demands had modified the lease (Watkins Co., LLC v. Storms, 152 Idaho 531, 272 P.3d 503 (2012)).
• South Carolina. The South Carolina Supreme Court held that jury waivers in a promissory note and guaranty were knowingly and voluntarily executed and enforceable, because a person who signs is charged with having read the document, and held that they covered the borrowers' counterclaims (Wachovia Bank, N.A. v. Blackburn, 407 S.C. 321 (2014)).

A federal district court in Illinois shows the other side. In Whirlpool Financial Corp. v. Sevaux, 866 F. Supp. 1102 (N.D. Ill. 1994), the court refused to enforce a waiver that took up three lines of a six-page form loan agreement, where the lender had far more bargaining power and the borrower was unfamiliar with the American civil jury system. That is a federal trial-court ruling, not Illinois appellate authority.

Leases

Lease waivers show up in many of these cases. The Utah Court of Appeals said that "Lease provisions waiving jury trials are enforceable" (TS 1 Partnership v. Allred, 877 P.2d 156 (Utah Ct. App. 1994)). The D.C. court enforced a waiver in a standard-form lease, saying a waiver "buried" in a form lease is not enough by itself to defeat it (Pers Travel). New York goes the other way for some claims. N.Y. Real Prop. Law § 259-c says that a lease provision that trial by jury "is waived in any action, proceeding or counterclaim brought by either of the parties thereto against the other in any action for personal injury or property damage, is null and void." The statute covers leases of real property generally and only those two kinds of claim. The text is on the New York Senate's site. For a drafting-side view, see our page on the waiver of jury trial clause.

In Leav v. Weitzner, 268 A.D. 466 (N.Y. App. Div. 1944), the court enforced a lease waiver against tenants who sued for damages caused by a landlord's alleged fraud, because by suing for damages the tenants had affirmed the lease.

New Jersey

Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), is an arbitration case. It held that an arbitration clause must explain, "in some general and sufficiently broad way," that the plaintiff is giving up the right to bring claims in court or have a jury resolve the dispute. We did not find a New Jersey appellate decision that applies Atalese to a stand-alone commercial jury waiver. The New Jersey authority we read on that point is a trial-court decision, Fairfield Leasing Corp. v. Techni-Graphics, Inc., 256 N.J. Super. 538 (Law Div. 1992), which held that a non-negotiated jury waiver set inconspicuously in a standardized form contract, signed without counsel, should not be enforced.

Other transaction-specific limits

Some statutes restrict waivers for particular transactions. The Illinois Nursing Home Care Act, as quoted in Carter v. SSC Odin Operating Co., 237 Ill. 2d 30 (2010), provides in section 3-607 that a waiver of the right to a jury trial in an action under that part of the Act, "whether oral or in writing, prior to commencement of an action, shall be null and void." The court held that the Federal Arbitration Act preempts those sections as applied to arbitration agreements. Check the current text of 210 ILCS 45/3-607 before relying on it. We did not research statutes in other states.

Scope and who is bound

A waiver can be enforceable and still not cover your dispute. Three points from the cases we read:

• Scope. The Alabama Supreme Court limits a waiver to "controversies directly related to and arising out of" the agreement that contains it (Mall), and held that a waiver covering claims "arising under" a contract did not bar a jury on the borrower's tort claims (SouthTrust Bank of Alabama, N.A. v. Cupps, 782 So. 2d 772 (Ala. 2000)). By contrast, a Michigan panel enforced a waiver covering any action "arising out of or in any way connected with" the agreement, saying it was "hard pressed to imagine language more sweeping and definite" (Andy J. Egan Co. v. Pro Services, Inc., No. 336358 (Mich. Ct. App. June 19, 2018), unpublished).
• Guarantors and others who did not sign. The Texas Supreme Court held that a guaranty incorporated the jury waiver in the lease it guaranteed (Prudential). The Rhode Island Supreme Court read a guaranty together with the loan notes that contained the waiver and struck the guarantor's jury demand (Rhode Island Depositors Economic Protection Corp. v. Coffey & Martinelli, Ltd., 821 A.2d 222 (R.I. 2003)). Going the other way, a Florida court held that a waiver in a guaranty signed only by the guarantor did not bind the tenant, which never signed it (Pierre's Caribbean Cuisine).
• Non-parties. Hawaii's Intermediate Court of Appeals held that agents who were not named in a lease and were not intended third-party beneficiaries could not enforce its jury waiver, which applied to the "parties hereto" (Pancakes of Hawaii, Inc. v. Pomare Properties Corp., 85 Haw. 300 (Ct. App. 1997)).

Jury trial waiver by state: the quick table

The pre-dispute rule and the authority we read for each state and the District of Columbia. "Not verified" means we did not read a controlling authority in our October 2026 review. It does not mean the law is unsettled.

How the answer changes with governing law: a hypothetical

A manufacturer and a distributor sign a master services agreement. The jury waiver sits in a miscellaneous section in unbolded type. The relationship ends, the distributor sues for breach of contract and tortious interference and demands a jury, and the manufacturer moves to strike the jury demand.

• California, Georgia or North Carolina law. The waiver is not enforced and the case goes to a jury, unless the contract also has an enforceable arbitration clause.
• Oklahoma law. The answer is contested after Home Vest.
• Montana or Nebraska law. Read the statutes above before you rely on the waiver.
• Other states. The answer turns on the state's test. A court that asks whether the clause is clear, as the Massachusetts court did in Chase, may enforce it. A court that weighs conspicuousness and bargaining power, as the federal court did in Whirlpool, may not. Prudential enforced a bold-captioned waiver after months of negotiation and left open whether a waiver must be conspicuous.
• The tort claim. Even if the waiver is enforceable, the manufacturer has to show it covers tortious interference. Wording like "arising out of or in any way connected with" was enforced in full in Egan. Wording like "arising under" left tort claims with a jury in Cupps.

A waiver can be enforceable in the state and still not reach the claim in front of you.

Drafting steps that respond to the cases

These steps respond to what the cases above looked at: negotiation, conspicuousness, counsel, scope and who signed. None of them makes a waiver enforceable in California, Georgia or North Carolina.

WAIVER OF JURY TRIAL

EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each party acknowledges that it has had the opportunity to consult with counsel of its choice regarding this waiver and is signing this waiver only after such consultation or after voluntarily declining to do so. The parties understand they are giving up their constitutional and statutory right to have any such dispute decided by a jury.

Initials: _____ (Party A) _____ (Party B)

Each part answers a question courts have asked. "Knowingly, voluntarily, and intentionally" matches the standard federal courts apply (Merrill Lynch). The bold, titled paragraph matches the facts in Prudential, where a bold caption helped. The counsel sentence matches the Nevada factor on whether counsel could review the agreement (Lowe). The last sentence borrows the idea behind Atalese, which requires an arbitration clause to explain that the party is giving up the right to sue in court or have a jury decide. The separate initial line is a drafting choice. We found no case requiring it, but it helps show the clause was not buried.

1. Separate, titled section. Not buried in "miscellaneous." Its own header, "WAIVER OF JURY TRIAL," in the same size type as other section headers.
2. Bolded, all-caps text for the operative clause. The actual waiver language in bold capitals.
3. Plain-language acknowledgment. "Each party understands and agrees that it is voluntarily giving up its right to have any dispute arising out of or relating to this Agreement decided by a jury."
4. Counsel-disclosure language. "Each party acknowledges that it has had the opportunity to consult with counsel of its choice regarding this waiver."
5. Separate initial line. A separate signature or initial line right after the waiver paragraph.
6. No deadline pressure. Avoid signing under a same-day or next-day deadline, and keep a record of the negotiation if the deal moves fast.
7. Scope wording. Use "arising out of or relating to" rather than "arising under" (Cupps).
8. Everyone who needs to be bound signs. If guarantors or affiliates matter, make sure each signs a waiver or the guaranty expressly incorporates it (Prudential, Coffey & Martinelli, Pierre's Caribbean Cuisine).
9. Mirror it in master and order forms. If the deal has a master agreement and downstream order forms, repeat the waiver in each with a clean cross-reference.

When not to include a waiver at all

The drafting question is how to make a waiver enforceable. The strategic question comes first: do you want one? Questions to ask:

• A waiver binds both sides. If your client is the likelier plaintiff, the waiver limits your client too.
• If the governing law is California, Georgia or North Carolina and there is no realistic way to change it, the clause will not be enforced. Rely on arbitration or another mechanism instead, and tell the client why.
• If the dispute will turn on technical or accounting evidence, a judge as fact-finder may suit your client. That is a judgment for the lawyer on the matter.

Including the waiver is a common default. It is a default and not a rule.

FAQ

Are jury trial waivers enforceable? In most of the states where we read a decision, yes, if the waiver is clear and was knowing and voluntary. California, Georgia and North Carolina refuse to enforce a pre-dispute waiver, and Arkansas, Oklahoma, Montana and Nebraska need a caveat. The table above shows the authority for each state.

Which states do not enforce contractual jury waivers? California (Grafton Partners L.P. v. Superior Court, 36 Cal. 4th 944 (2005)), Georgia (Bank South, N.A. v. Howard, 264 Ga. 339 (1994)) and North Carolina (N.C. Gen. Stat. § 22B-10). Arkansas's Supreme Court refused them in Tilley (2017) before a 2018 statute made them enforceable in loan contracts. An Oklahoma appeals court held them void under the state constitution in Home Vest Capital. Montana and Nebraska have statutes that point the same way, but we found no decision applying either to a contract clause.

Can you waive your right to a jury trial in a contract? Often yes, but not in every state, and not every claim. Check the governing state's law, make sure the clause covers the claim, and make sure the people you want to bind signed it.

Are jury trial waivers enforceable in California? No, not when they are signed before a dispute arises. Code of Civil Procedure section 631 lists the ways to waive a jury, and Grafton held a pre-dispute contract clause is not among them. For a non-jury forum in a California-governed deal, use arbitration or a judicial reference clause under Code of Civil Procedure section 638. In federal court in the Ninth Circuit, In re County of Orange applies California's rule in a diversity case.

What does waiver of jury trial mean? It means giving up the right to have a jury decide your case so a judge decides it instead. A pre-dispute waiver is a clause in a contract signed before any dispute. A post-dispute waiver is an agreement made once a case is pending, such as a stipulation filed with the court, and it does not raise the problems described above.

Is a jury waiver in a lease enforceable? Often, in states that enforce waivers, but New York voids a lease clause waiving jury trial in an action between the parties for personal injury or property damage (N.Y. Real Prop. Law § 259-c). The Utah Court of Appeals and the D.C. Court of Appeals both enforced lease waivers (TS 1 Partnership, Pers Travel). See the lease section above and check your state.

What does "knowing and voluntary" mean for a jury waiver? It is the federal standard, and many states use some version of it. Courts look at things such as whether the parties negotiated, how conspicuous the clause is, the parties' bargaining power, and whether counsel could review it. Nevada adopted a four-factor list (Lowe), the D.C. court declined to use a list (Pers Travel), and Colorado applies general contract principles (Colorado Coffee Bean).

Who has the burden to prove a jury waiver was knowing and voluntary? It depends on the federal circuit. The Fourth Circuit puts it on the party enforcing the waiver (Crane). The Sixth Circuit (K.M.C.) and the Fifth Circuit (Pizza Hut v. Pandya) put it on the party resisting. We did not research the other circuits.

Does federal or state law govern a jury waiver in a diversity case? The Second Circuit treats federal law as the law governing the waiver (Merrill Lynch). The Ninth Circuit applies federal law but imports a more protective state rule as the federal rule, which is why California's rule followed the case into federal court in County of Orange. We did not research the other circuits.

How do you draft a jury waiver that holds up? Put it in its own titled section, set the operative sentence in bold capitals, add a plain-language acknowledgment, include counsel-disclosure language and a separate initial line, use broad scope wording, and make sure everyone you need to bind signs. None of that rescues a waiver in California, Georgia or North Carolina.

Is a jury waiver the same as an arbitration agreement? No. A jury waiver keeps the case in court and sends it to a judge. An arbitration agreement moves the case out of court to a private arbitrator. The sources we read for California, North Carolina and Arkansas keep arbitration available where a pre-dispute jury waiver is not (Grafton, § 22B-10, Tilley).

Next step for the reader

If you are about to draft or litigate around a waiver, take a 30-minute pass through your form. Pull each master agreement template, find the waiver clause, and check it against the steps above and against the law of the state you most often use.

For related state-by-state coverage, see Choice-of-Law Clauses That Quietly Fail: A State-by-State Breakdown, Liquidated Damages Enforceability by State, Attorneys' Fees Provisions by State, and Indemnification Caps by State. For the dispute-resolution clause these waivers usually sit next to, see dispute resolution. All sit in our all-50-states legal reference series.

For the US statutes, regulations and court rules these laws sit in, see the US primary law API.

Arshita Anand

Co-Founder & CEO · Attorney

Arshita leads product and strategy at Vaquill AI, the US primary law data API. As an attorney, she decides which law we carry, how each section is sourced and cited, and what legal AI and compliance teams need from the data.