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Trial by jury: a rarity that can take you by surprise.

In landlord tenant litigation, trial by jury is a rarity. Most leases contain a standard waiver of right to trial by jury, so cases are normally heard in special courts set up for landlords and tenants, with judges appointed from the ranks of legal aid lawyers.

However, in certain situations, either a landlord or a tenant can request a trial by jury, sending the case to Civil Court, where it is heard by a civil court judge, rather than a landlord tenant judge. While this only occurs in approximately one out of 250 cases, as a landlord, you could suddenly find yourself shunted toward Civil Court. In these circumstances, it's best to go knowing the ins and outs of Civil Court, because there are important differences between it and Housing Court.

Procedures and Differences

Usually, a landlord or a tenant will want to get into and out of Housing Court as quickly as possible. While L/T court may seem like the worst of all possible worlds, starting with how the courts are set up, and ending with the fundamental bias of the system against landlords, the procedural inconveniences of trial by jury actually make the indignities of L/T court pale by comparison.

In L/T court, typically, you'll spend a short number of hours actually in Court, interspaced between months of waiting. Usually, the two sides will settle. In a trial by jury, the number of hours spent in court is comparatively enormous. It is a long, protracted, and naturally, costly process.

First, there's a delay in getting onto a judge's docket. Then it takes one to three days to pick the 6-person jury, with all the attendant sitting and waiting. Then the judge makes an opening statement and briefs the jurors. Then opening statements are made by the landlord's and tenant's lawyers. Evidence is then presented, and finally, both sides make closing statements. The whole process takes at least 6 full days in court. Often, a trial by jury will be requested in order to create real acrimony, cause as much delay as possible, and run up the other side's legal costs. It's not a procedure conducive to getting the two sides to resolve their differences.

When Can A Case Be Heard By A Jury?

If the lease contains the standard waiver, it is almost impossible to get a trial by jury except in special circumstances when it is possible to override this. For example, in the case of a long-term rent stabilized tenant, a prior lease might have been silent on the matter, or may have included the right to a trial by jury. Usually, the Courts would uphold that clause in an old lease, even if the tenant signed a subsequent lease. Often, it will depend on the judge. If the lease contains the right to a trial by jury, only under the most subtle legal conditions could either the landlord or the tenant override that right. Again, if the lease is silent, or there's no lease, both sides are entitled to a jury. But if issues of equitable defense are brought up, there may be the possibility of override.

Getting a Jury Trial: How & Why

The first step in getting a trial by jury is to file a jury demand in Housing Court. Once you've filed for a trial by jury, the case gets put on a separate calendar, and automatically gets sent to Civil Court. There are very few cases in which a landlord would prefer a trial by jury. In fact, it is usually a last resort for a landlord who has been repeatedly unsuccessful in the quest for fairness in Housing Court. Even then, the landlord's lawyers would want to do their best to seek out a jury of the landlord's peers.

While tenants generally get a sympathetic ear from Housing Court judges and aren't likely to do better in a jury trial, sometimes they want to create as much delay and wreak as much havoc as possible. Additionally, it is difficult for tenants' lawyers to pre-determine the result of Housing Court hearings because the judge is not named until after the lawyer has submitted to the process. This is true in both residential and commercial situations.

The main difference between presenting the case to a Housing Court judge and to a judge and jury hangs on the fact that in a jury trial, you are no longer addressing a supposedly dispassionate judge. You are talking to a jury whose emotions can be swayed.

Whether representing landlord or tenant, this has to be taken into account when you are presenting your evidence. You need therefore to think about what looks good and bad to a jury. And as with normal Housing Court cases, you can file an appeal for a jury case the same way you would in a regular Housing Court case.

Picking a Jury

What do you look for when picking a jury? For a landlord, you would want other landlords or people whose backgrounds would make them sympathetic to landlords, such as small business owners. Definitely not tenant organizers! For tenants, you would naturally look for people who were sympathetic to tenants. As with any other type of jury, you would look into the candidates' histories to determine whether or not you'd pick them. In terms of the number of candidates you may decline, the rules vary between counties.

The question remains, might either side get a fairer hearing in Civil Court? Is there more chance that in Civil Court, a judge's final decision would be fair, and not as absurd as judgements so often are in L/T Court? The answer here is that you're in the hands of the jury. A judge can always override what a jury determines, for example modifying a rent abatement in proportion to the facts of the case and the application of the law. Otherwise, you're in the hands of the jury. Good luck!

(Howard Poch and Jacqueline Doyle are Manhattan based landlord-tenant lawyers.)
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Copyright 1995, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Property Management Supplement
Author:Doyle, Jacqueline
Publication:Real Estate Weekly
Date:Mar 22, 1995
Previous Article:Good management is key to building's success.
Next Article:Taking the risk out of renting your property.

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