Split on Burden of Proof for Contractual Jury Waivers Noted

The court in Popular Leasing USA, Inc. v. Terra Excavating, Inc., Slip Copy, 2005 WL 2468069 (E.D. Mo. Oct 06, 2005), recently noted, but failed to take a position on, the circuit split on the quesiton of which party bears the burden of proving that a contractual jury waiver was knowing and voluntary. The court noted that the Eighth Circuit has yet to rule on this issue:

The federal circuits are split on the question of which party bears the burden to prove that a contractual jury waiver was knowing and voluntary. See Pierce v. Atchison Topeka & Santa Fe Ry. Co ., 110 F.3d 431, 435 n. 4 (7th Cir.1997) (collecting cases); Hulsey v. West, 966 F.2d 579, 581 (10th Cir.1992) (identifying the split among the circuits). The Eighth Circuit does not appear to have ruled on this point. A district court in this circuit has persuasively commented that the party seeking to enforce the waiver should bear the burden of proof, because it is the party seeking to benefit from the waiver and "can prepare to meet that burden by careful drafting of the provision, its conspicuous presentation, and preparation of a record that the provision was explained and reviewed, for example, by requiring that the provision be initialed." Cooperative Fin. Ass'n, 871 F.Supp. at 1172 n. 2.

This Court need not resolve which party bears the burden of proof with respect to a jury waiver, because even if the burden is placed on the defendants, they have met their burden to establish that the waiver was not knowing and voluntary. Under the circumstances of this case, the jury waiver provision in the Leases fails to overcome the presumption against waiver of the fundamental constitutional right to trial by jury.