Previously published on SSRN


Trials, though rare, “shape almost every aspect of procedure,” and the jury trial is a distinctive feature of civil litigation in the United States. The Seventh Amendment of the U.S. Constitution ‘preserves’ the right to jury trial “[i]n suits at common law, where the value in controversy shall exceed twenty dollars.” Even though this amendment does not apply to the states, courts in the states “honor the right to the extent it is created in their constitutions or local statutes.”

The Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate,” and Georgia’s appellate courts have shown great interest in the right to a civil jury since the late 1840s. The Georgia Supreme Court has acknowledged that the Seventh Amendment does not apply to the state’s courts, and it has recognized that the state judiciary’s interpretations of the Georgia Constitution’s jury trial provision are not bound by the federal judiciary’s interpretations of the Seventh Amendment. Notwithstanding the independence of these judicial systems, determining whether a party has a right to a jury trial under their respective constitutions is often a challenging issue for their courts.

This issue is often resolved easily because most civil claims in the federal courts and in Georgia’s courts fit within established patterns and there is abundant precedent. However, history matters; when the Seventh Amendment and Georgia’s right to jury trial provision were adopted in the late 18th Century jury trials were available in the common law courts but not in equity, and the boundary between the respective domains of the common law and equity has never been hard and fast. This helps explain why the right to a civil jury trial issue has been litigated many times before the United States Supreme Court, and some of these cases were especially challenging. The same holds true in Georgia’s courts where the scope of the right to a civil jury trial has been litigated many times since the late 1840s.

This article presents Georgia’s right to jury trial jurisprudence since the establishment of its courts in the 18th Century. It first discusses the challenge of determining how particular claims were tried in England in the late 18th Century, the impact of the merger of law and equity, and then explains why one appellate judge in Georgia referred to the Georgia Constitution of 1777 instead of the Constitution of 1798. Next, this article’s analysis of Georgia’s right to jury trial jurisprudence starts with two influential decisions from 1848, and then covers some of the historic distinctions between law and equity, statutory authorizations of jury trials in equity, and how Georgia’s courts have handled right to jury trial demands in connection with claims that were unknown in 1798.

This article’s discussion of Georgia’s jurisprudence on the right to a civil jury trial under the Georgia Constitution should be useful for anyone grappling with a right to jury trial issue in one of Georgia’s courts. The issue is still being litigated. For example, the impact of tort reform measures on the right to jury trial has been litigated recently in Georgia’s courts, and there is still uncertainty about whether particular claims are legal or equitable. Moreover, this topic is a very interesting aspect of Georgia’s rich legal history. After all, the civil jury is a venerable democratic institution.