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Suit-Within-a-Suit: Can a Jury Hear All Issues if There Was no Jury in the Underlying Case? Some courts suggest that when the litigant in the underlying action was never entitled to a jury trial, a jury should not decide the subsequent suit-within-a-suit in the malpractice action. Other courts, however, have held that the jury in the malpractice case should also try the suit-within-a-suit. By Brian J. Molloy and Pierre Chwang