The right to trial by jury, derived from English common law,1 is set forth in Delaware’s Constitution, which provides that “[t]rial by jury shall be as heretofore.”2 This language has been interpreted as preserving for the public the right to trial by jury in civil cases to the extent such right existed at common law as of the adoption of Delaware’s most recent Constitution in 1897.3 Thus, for civil cases, a historical examination must be made of a given case to determine whether the cause of action was of the type as to which trial by jury was permitted at early common law. Under this analysis, courts have found there to be no right to trial by jury in condemnation cases,4 civil non-support cases5 and actions involving the shortage of accounts of a tax collector.6 By contrast, courts have found that the right to trial by jury attaches to contract actions,7 forfeiture actions to the extent of determining whether the property was used in connection with the commission of a crime,8 replevin actions9 and actions on a debt for goods sold and delivered.10
The right to trial by jury does not extend to suits in equity.11 It has been said that the decision to bring suit in the Court of Chancery is an effective waiver of the right to a jury trial.11.1 In one case, the Court of Chancery transferred the action to the Superior Court with the order that the Superior Court conduct a bench trial, claiming that by waiting a year before seeking transfer, the movant waived the right to a jury trial, even in the Superior Court.11.2
By statute, however, the Court of Chancery has discretionary authority to submit factual issues to determination by a jury in the Superior Court.12 Similarly, in the Superior Court, in an action not triable of right by a jury, the judge, upon motion of a party or on his or her own initiative, may try an issue with an advisory jury.13 The findings of an advisory jury are not binding, although they are entitled to weight.14
Unless a statute requires that a certain type of action be tried without a jury, the Superior Court, with consent of the parties, may order a trial with a jury even where the parties have no right to a jury trial. In such cases the verdict of the jury has the same effect as if trial by jury had been a matter of right.15
A grant by a court of additur or remittitur to does not violate the right of trial by jury.15.1
1. Claudio v. State, 585 A.2d 1278, 1290 & n.30 (Del, 1991).
2. Del. Const. art. I, § 4. For a discussion of the right to trial by jury under Delaware law, see McCool v. Gehret, 657 A.2d 269 (Del. 1995).
3. Claudio v. State, 585 A.2d 1278, 1297 (Del. 1991); Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 911 (Del. 1989); Ellery v. State ex rel. Secretary of the Dept. of Transportation, No. 420, 1992, slip op. at 4, Walsh, J. (Del. Aug. 24, 1993) (ORDER), disposition reported at 633 A.2d 369 (Del. 1993) (TABLE); Lacy v. Green, 428 A.2d 1171, 1175 (Del. Super. 1981); Cahill v. State, 411 A.2d 317, 331-32 (Del. Super. 1980), rev’d on other grounds, 443 A.2d 497 (Del. 1982).
4. Ellery v. State ex rel. Secretary of the Dept. of Transportation, No. 420, 1992, slip op. at 4, Walsh, J. (Del. Aug. 24, 1993) (ORDER), disposition reported at 633 A.2d 369 (Del. 1993) (TABLE).
5. State v. Cahill, 443 A.2d 497 (Del. 1982),
6. Aetna Casualty & Surety Co. v. Wilmington, 160 A. 749 (Del. Ch. 1932).
7. Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 912 (Del. 1989).
8. State v. Rossitto, 331 A.2d 385 (Del. 1974).
9. In re Markel, 254 A.2d 236 (Del. 1969).
10. Getty Refining & Marketing Co. v. Park Oil, Inc., 385 A.2d 147 (Del. Ch. 1978).
11. Park Oil, Inc. v. Getty Refining & Marketing Co., 407 A.2d 533, 535 (Del. 1979); Moore v. Graybeal, No. 340, 1988, slip op. at 3, Walsh, J. (Del. Oct. 28, 1988) (ORDER), disposition reported at 550 A.2d 35 (Del. 1988) (TABLE).
11.1. Sokol Holdings, Inc. v. Dorsey & Whitney, LLP, C.A. No. 3874-VCS, slip op. at 13, Strine, V.C. (Del. Ch. Aug. 5, 2009). See also Wal-Mart Stores, Inc. v. AIG Ins. Co., C.A. No. 19875, slip op. at 11, Lamb, V.C. (Del. Ch. Dec. 12, 2006) (in deciding whether to transfer surviving legal claim to Superior Court, no weight is given to the desire for a jury trial since the plaintiff had not evidenced any interest in a jury trial for the legal claim over the previous four years of litigation).
11.2. Sokol Holdings, Inc. v. Dorsey & Whitney, LLP, C.A. No. 3874-VCS, slip op. at 14-15, Strine, V.C. (Del. Ch. Aug. 5, 2009).
12. 10 Del. C. § 369. See also Saunders v. Saunders, 71 A.2d 258, 261 (Del. 1950); Getty Refining & Marketing Co. v. Park Oil, Inc., 385 A.2d 147, 151 (Del. Ch. 1978); Aetna Casualty & Surety Co. v. Wilmington, 160 A. 749, 750 (Del. 1932); Scotton v. Wright, 122 A. 541, 542 (Del. Ch. 1923); Mackenzie Oil Co. v. Omar Oil & Gas Co., 120 A. 852, 855 (Del. Ch. 1923); Sparks v. President, Directors & Co. of Farmers’ Bank, 3 Del. Ch. 225, 230 (Del. Ch. 1868); Comly v. Waters, 2 Del. Ch. 72, 75-6 (Del. Ch. 1840).
13. Super. Ct. Civ. R. 39(c).
14. Getty Refining & Marketing Co. v. Park Oil, Inc., 385 A.2d 147, 151 (Del. Ch. 1978); Old Time Petroleum Co. v. Turcol, 156 A. 501, 506 (Del. Ch. 1931); Scotton v. Wright, 122 A. 541, 542 (Del. Ch. 1923).
15. Super. Ct. Civ. R. 39(c).
15.1. Reid v. Heindt, 976 A.2d 125, 129-31 (Del. 2009).
© 2010 David L. Finger