1. What should the lawyer do to secure the patent holder's right to a jury trial?

The Seventh Amendment provides the right to a jury trial, but only in federal court. In suits at common law, the right of a trial by jury shall be guaranteed. Federal Rule of Civil Procedure (FRCP) 38 provides that the right of a trial by jury as declared in the Seventh Amendment is preserved for the parties. A party who wishes for a jury trial on a particular issue must file a written demand with the court and serve it on all parties. The demand may be included with a pleading. Failure to properly file and serve the demand within 14 days after the service of the last pleading directed to that issue constitutes a waiver by that party of any right to trial by jury.

A is correct. To secure the patent holder's right to a jury trial, the lawyer should file and serve the complaint, including a jury trial demand. FRCP 38(b)(1) specifically allows for a demand for a jury trial to be included in a pleading. By including it within a properly-filed and -served complaint, the patent holder's right will be secured.

B is incorrect. The close of discovery often occurs months or even years after the beginning of a civil suit in federal court. FRCP 38(b)(1) requires the jury demand to be filed no later than 14 days after service of the last pleading directed to the issue on which a jury is sought. To wait until the close of discovery would certainly be after the close of pleadings, and the patent holder's right to a jury trial would be waived.

C is incorrect. This answer choice misstates the proper time period for filing a jury demand. FRCP 38(1) requires the demand to be filed and served no later than 14 days after the last pleading on that issue has been served.

D is incorrect. As previously stated, a jury trial demand must be served no later than 14 days after service of the last pleading directed to the issue on which a jury is sought. The initial pre-trial conference likely will not be scheduled until weeks after the pleadings have closed. Therefore, making the demand at the initial pretrial conference would also be too late.