You Cannot Surrender What’s Not Yours to Give Up.

In the on-going saga of Southern Minnesota Beet Sugar Cooperative (SMBSC) v. Agri Systems (previous posts, here and here), we observe the classic slightly silly trial lawyer scenario when (1) Party A advocates for Position A (no jury), (2) the adversary, Party B, fights for Position “Not-A” (trial by jury) (3) Party B reverses course, agreeing to Position A (no jury); and (wait for it) (4) Party A jumps over to Position “Not-A” (trial by jury).

This is less silly than it might first appear. Parties’ views of their cases evolve over time, through litigation. Parties’ views of the judge’s views obviously evolve over time. At the start of a lawsuit, before they have any sense of the judge’s perspective (and even a full appreciation of the facts and law that, later on, might be the deciding factors in the lawsuit), parties must decide whether to seek a jury or waive their right to a jury (or, by failing to invoke the right, may be deemed to have waived it).

But in SMBSC v. Agri, the Court (U.S. District Court Judge Wilhemina M. Wright (D. Minn.)) pointed out that SMBSC could not hold Agri to its professed desire for a jury when Agri had expressly disclaimed (or waived) its right to a jury by contract. Since Agri never had the right, its jury trial demand was D.O.A., and therefore it could not be held to its demand and obligated to try to case to a jury.