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What should you do when a demand for a jury trial in a federal civil case is denied? Surprisingly, there is no simple answer to this question, and the standards governing appeals from denials of civil jury trials are the subject of a circuit split that the U.S. Supreme Court has declined to resolve. You’ve got three options: Weigh them carefully Litigants denied a civil jury trial by a federal district court have at least three options: petitioning the court of appeals for a writ of mandamus; pursuing a permissive interlocutory appeal under 28 U.S.C. 1292(b); or appealing the denial of a jury trial after final judgment. Counsel should be prepared to weigh these options carefully because the ramifications of each option are different and the consequences can be significant. Writ of Mandamus. In general, a writ of mandamus is used only in very limited circumstances, typically to order a lower court to perform a nondiscretionary act or to reverse actions that “amount . . . to a judicial ‘usurpation of power.’ ” Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996). The writ of mandamus, however, has found a special niche in protecting the right to a jury trial. As long ago as 1918, the Supreme Court recognized mandamus as the appropriate vehicle to cure erroneous denials of a civil jury trial. In re Simons, 247 U.S. 231 (1918). The court based its conclusion on judicial economy-avoiding duplicative bench and jury trials-and the convenience of prejudgment appeal to litigants. This reasoning survived over the ensuing decades, and in 1959, the Supreme Court affirmed that “[w]hatever differences of opinion there may be in other types of cases . . . the right to grant mandamus to require jury trial where it [has] been improperly denied is settled.” Beacon Theatres Inc. v. Westover, 359 U.S. 500, 511 (1959). Several years later, the court reiterated that courts of appeals have the “responsibility . . . to grant mandamus where necessary to protect the constitutional right to trial by jury.” Dairy Queen Inc. v. Wood, 369 U.S. 469, 472 (1962). Standard for Issuance of Mandamus. The Supreme Court has not, however, resolved a disagreement over the proper standard for issuance of mandamus when a jury trial denial is challenged. In other contexts, a writ of mandamus is an extraordinary remedy, which requires a high threshold showing that the petitioner has no other adequate means to secure the requested relief and has a ” ‘clear and indisputable’ ” right to the relief. See Mallard v. United States Dist. Ct., 490 U.S. 296, 309 (1989). While some circuits have not squarely addressed the issue, several have taken the Supreme Court’s decisions in Dairy Queen and Beacon Theatres to mean that the writ should issue if a de novo review shows that the district court erred in denying a jury trial, without the extraordinary showing usually required for mandamus. See, e.g., Maldonado v. Flynn, 671 F.2d 729, 732 (2d Cir. 1982). The 9th U.S. Circuit Court of Appeals has stated the principle plainly: “The right to a jury trial . . . has occupied an exceptional place in the history of the law of federal mandamus permitting a writ to issue although the petitioner is unable to show a ‘clear and indisputable’ right.” Wilmington Trust v. United States Dist. Ct., 934 F.2d 1026, 1028 (9th Cir. 1991). 7th Circuit insists on high threshold standards The 7th Circuit, however, has insisted that the usual high-threshold standards for mandamus be met in cases challenging a jury trial denial. See First Nat’l Bank of Waukesha v. Warren, 796 F.2d 999 (1986). Writing for the majority, Judge Frank H. Easterbrook noted that jury trial denials can generally be corrected on appeal of a final judgment and that review on a mandamus petition entails “all of the vices of an interlocutory appeal.” Id. at 1001. He maintained that if principles of judicial economy support more lenient mandamus standards in the jury trial context, they support interlocutory review of other pretrial and trial errors as well. The court ultimately read Beacon Theatres and Dairy Queen as authorizing mandamus “only when a clear right to a jury trial could not be vindicated on appeal from the final judgment.” Id. at 1006. The Supreme Court has passed on the opportunity to resolve this issue, denying certiorari in a 7th Circuit case that applied the First National Bank standard in rejecting mandamus relief from a jury trial denial. Kamen v. Nordberg, 485 U.S. 939 (1988). Justice Byron White dissented, noting that First National Bank conflicts with other courts of appeals decisions holding that “a proper petition for mandamus in these circumstances obliges the Court of Appeals to address the merits of the claimed right to a jury trial” and that the 7th Circuit rule “may also be inconsistent” with Beacon Theatres. Id. at 939-40. Mandamus Decision as Law of the Case. In circuits that do not apply the usual heightened mandamus standards in reviewing jury trial denials, the appellate court’s decision on the petition will become the law of the case, and appeal of the issue after final judgment will be barred. See, e.g., Maldonado v. Flynn, 671 F.3d 729, 732 (2d Cir. 1982). This is obviously an important consideration in determining whether to pursue a mandamus petition. Law of the case, however, applies only to issues actually decided on the merits, and thus would not apply to an order denying a petition based on the traditional heightened mandamus standards. See Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001); Moore v. Sun Oil Co., 636 F.2d 154, 155-56 (6th Cir. 1980). So in any court following the 7th Circuit’s approach in First National Bank, a denial of mandamus based on the heightened threshold showing would not bar review of the jury trial issue on appeal from final judgment. A petitioner in the 7th Circuit, therefore, may get two bites at the apple, ironically increasing the incentive to petition for mandamus in that circuit. The Section 1292(b) Option. As an alternative to mandamus, counsel can move for certification of a jury trial denial for interlocutory appeal under 28 U.S.C. 1292(b). Section 1292(b) requires that there be “substantial ground for difference of opinion” over a “controlling question of law” and that an immediate appeal “may materially advance the ultimate termination of the litigation.” The availability of such an appeal is subject to the discretion of both the district court and the court of appeals. Section 1292(b) has been used to permit early review of jury trial rulings, especially when they raise an issue of first impression. See, e.g., Stewart v. KHD Deutz of Am. Corp., 75 F.3d 1522, 1524 (11th Cir. 1996). District courts may also certify jury trial issues for appeal under � 1292(b) sua sponte. See, e.g., Salt Lake Tribune Pub. Co. v. AT&T Corp., 320 F.3d 1081, 1087 (10th Cir. 2003). In some cases, after certifying a jury trial denial for immediate appeal, district courts have required the objecting party to pursue certification in the court of appeals or be deemed to have waived the right to a jury trial. See Bernstein v. Universal Pictures Inc., 79 F.R.D. 59, 71 (S.D.N.Y. 1978); In re Boise Cascade Sec. Litigation, 420 F. Supp. 99, 108 (D. Wash. 1976). In deciding whether to seek � 1292(b) certification, counsel should consider whether the trial court’s ruling raises an issue of first impression or a legal issue over which there is genuine debate. Counsel should also consider how the trial judge may react to the litigant’s seeking mandamus without first having provided the judge the opportunity to certify the question for appeal under � 1292(b). Counsel must remember that, if certification is granted, the ruling of the court of appeals on the merits of the jury trial issue will become the law of the case and preclude an appeal of this issue after final judgment. Appeal After Final Judgment. There is no requirement that one seek interlocutory review of a jury trial denial through mandamus or � 1292(b) in order to preserve the issue for review in a post-judgment appeal. See, e.g., Perez-Serrano v. DeLeon-Velez, 868 F.2d 30, 32 (1st Cir. 1989). On appeal from final judgment, appellate courts review the district court’s denial of a jury trial de novo. See, e.g., Brown v. Sandimo Materials, 250 F.3d 120, 125 (2d Cir. 2001). Erroneous rulings denying a jury trial are deemed to be harmless error only if a directed verdict for the opposing side would have been warranted-i.e., if the matter should never have gone to the jury. See, e.g., Crocker v. Piedmont Aviation Inc., 49 F.3d 735, 749 (D.C. Cir. 1995). Seeking interlocutory appeal may outweigh risks Counsel should become familiar with the options for seeking review of a jury trial denial and the consequences that flow from pursuing each option in their circuit. If a jury trial is critically important, for trial strategy or for leveraging a settlement, seeking interlocutory review may outweigh the risk of an adverse interlocutory ruling precluding appeal of the issue from final judgment. If a jury trial is desirable but not essential, it may make sense to wait until final judgment to appeal the issue. If the litigant prevails in the bench trial, an appeal is unnecessary; if he loses, and a jury trial was improperly denied (and if the case is strong enough to survive a directed verdict), a new jury trial will be ordered on appeal. On the other hand, this strategy entails the risk and expense of two trials. A court of appeals may also be unreceptive to an appellant who has clearly held the jury trial issue in his pocket while he waited to see how he fared in the bench trial. Given these legal and strategic considerations, trial and appellate counsel should consult as soon as a motion for jury trial is denied and carefully weigh the options for appealing the issue. Aaron S. Bayer is the chairman of the appellate practice group at Wiggin & Dana, based in New Haven, Conn. He can be reached at [email protected]. This is his first column for The National Law Journal.

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