Ex parte BancorpSouth Bank, [Ms. 1111209, Oct. 19, 2012] __ So. 3d __(Ala. 2012). Thomas Busby signed
guarantees of loans that included waivers of jury trial. When a dispute
arose, he sued, demanding a jury trial. The trial court denied the bank's
motion to strike the jury demand, and the bank petitioned for mandamus.
The Court applies the following standard in evaluating whether to enforce
a contractual waiver of the right to trial by jury: (1) whether the waiver
is buried deep in a long contract; (2) whether the bargaining power of
the parties is equal; and (3) whether the waiver was intelligently and
knowingly made. The guarantee agreements were only two pages long, and
the second of two jury-waiver provisions was in bold, all capital letters
just above the signature line. Busby is a lawyer and a sophisticated investor.
Busby's knowledge and experience were sufficient to satisfy the Court
that the waiver was knowingly and intelligently made. The Court grants
mandamus, ordering the trial court to strike Busby's jury demand.
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