Nebraska § 25-1126 - Jury trial; waiver.

§ 25-1126. Jury trial; waiver.

The trial by jury may be waived by the parties in actions arising on contract and with assent of the court in other actions (1) by the consent of the party appearing, when the other party fails to appear at the trial by himself or herself or by attorney, (2) by written consent, in person or by attorney, filed with the clerk, and (3) by oral consent in open court entered upon the record.

1. Waiver

2. Oral Consent

3. Written consent

4. Miscellaneous

1. Waiver

Where the parties agreed that a hearing to set trial was not conducted on the record and no record was available for review on appeal, and where a commercial tenant and its guarantors opted not to present their own case in chief or move for a directed verdict at trial on damages, instead continuing their objection to the trial going forward without a jury, there was no "oral consent in open court entered upon the record" operating to waive commercial tenant's and guarantors' right to a jury trial. 132 Ventures v. Active Spine Physical Therapy, 313 Neb. 45, 982 N.W.2d 778 (2022).

The client is bound by the attorney's choice to waive a jury trial in a civil action. McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021).

A party’s waiver of a jury trial in district court is statutorily governed by this section because it sets reasonable limits on a constitutional right. This section provides an exclusive list of the manners in which a waiver occurs. Unless a party’s conduct falls into one of this section’s three categories, a court will not find a waiver of a constitutional right. It does not provide that a party waives the right to jury trial by failing to demand one. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

2. Oral Consent

The rule that when parties try issues of fact to the court without objection or ask for a directed verdict it should be construed as a waiver of jury trial by "oral consent" applies individually to bifurcated trials. 132 Ventures v. Active Spine Physical Therapy, 313 Neb. 45, 982 N.W.2d 778 (2022).

Cases in which the parties tried issues of fact to the court without objection or asked for a directed verdict should be construed as falling into the “oral consent” category of waivers under this section. Such conduct is inconsistent with demanding a jury trial, and the trial court’s judgment operates as its assent to the procedure. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Merely failing to object, before trial, to a defendant’s request for a bench trial on a bifurcated affirmative defense is not oral consent in open court to waive a jury trial. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

3. Written Consent

A written waiver of jury trial signed by defense counsel in criminal case and acquiesced in by defendant is a valid waiver. State v. Klatt, 192 Neb. 219, 219 N.W.2d 761 (1974).

4. Miscellaneous

It is within discretion of trial court to permit a waiver of trial by jury to be withdrawn. McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966).

In a will contest in district court on appeal, contestant not appearing, proponent may waive jury trial. Shelby v. St. James Orphan Asylum, 66 Neb. 40, 92 N.W. 155 (1902).

Where jury trial is waived, order of argument is subject to discretion of court. Citizens State Bank v. Baird, 42 Neb. 219, 60 N.W. 551 (1894).

Waiver of jury trial may be made in replevin, with assent of court. Baker v. Daily, 6 Neb. 464 (1877).