Check Mate: Trump’s Failure to File a Jury Demand
A dramatic scene occurred recently at the start of President Trump’s fraud trial in New York Supreme Court when Justice Arthur Engoron announced that there was no jury because “nobody asked for one.” The looks on the faces of Trump and his counsel went viral and social medial exploded because, as was widely reported, demanding a jury in New York State Court is as easy as “checking a box.”
The check mark in question appears on the form for a Note of Issue, the document that a party files to show that the case is ready for trial. Pursuant to CPLR 4102:
“Any party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury. Any party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue. A demand shall not be accepted for filing unless a note of issue is filed in the action.”
Trump’s counsel pushed back on the notion that the failure to demand a jury was simply a clerical oversight (and every lawyer’s nightmare). She pointed out that the statute under which the Attorney General sued Trump, New York Executive Law § 63 (12), did not provide for the right to a jury trial so demanding one would have been futile . Her client does not seem to have agreed, however, as Trump publicly denounced the lack of a jury as well as attacking Justice Engoron and his staff. [Personal note from one who has appeared many times before Justice Engoron and his extremely capable law clerk: the criticisms are particularly ill advised and offensive]. Whether Trump’s lawyers should have pressed the issue is a matter of debate, but the clear lesson for every junior associate or legal assistant charged with filling out a Note of Issue or reviewing one filed by the other side—don’t overlook that little check mark.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Alice K. Jump who counsels clients on litigation, alternative dispute resolution and business counseling, with particular emphasis on representing clients in the financial services and real estate industries as well as educational and non-profit institutions. Ms. Jump is admitted to practice law in New York and before the United States District Courts for the Southern and Eastern Districts of New York and the United States Court of Appeals for the Second Circuit.