Advisory Jury

Historically, factual issues that are not triable as a matter of right before a jury such as in probate or equity cases may be tried at the discretion of the trial court before an advisory jury. In Re Wartels' Estate, 338 So.2d 48 (Fla. 3d DCA1976) affirmed, 357 So.2d 708 (Fla.1978); In Re Fanelli's Estate, 336 So.2d 631 (Fla. 2d DCA1976); Gulf Life Insurance Company v. Urquiaga, 251 So.2d 904 (Fla. 2d DCA1971).

Where the parties have effectively waived their right to a common law jury trial there is no right to such a jury trial, but the trial court may in its discretion utilize an advisory jury. Hargrove v. American Central Insurance Company, 125 F.2d 225 (10th Cir.1942); Lumbermens Mutual Casualty Co. of Illinois v. Timms & Howard, 108 F.2d 497 (2d Cir.1939); Coates v. National Cash Register Co., 433 F.Supp. 655 (W.D.Va.1977); Ligouri v. New York, N.H. & H.R. Company, 26 F.R.D. 565 (D.Conn.1961).

However, even with an advisory jury the trial court is the trier of both law and fact and it is the trial court's ultimate findings and judgment alone which are subject to review. Gulf Life Insurance Company, supra; Cox v. Babcock & Wilcox Company, 471 F.2d 13 (4th Cir.1972); Wilson v. Prasse, 463 F.2d 109 (3d Cir.1972).

While a court cannot impose a common law jury trial upon parties who have contractually agreed to try their case to the court, a trial court is not imposing a jury trial upon the parties when it utilizes a jury in an advisory capacity because the jury acts merely as an aid to the court who must make its own findings of fact and conclusions of law and must bear the ultimate responsibility for the judgment. Thus, where the parties have contractually agreed to try their case to the court, an advisory jury does not interfere with this agreement because the trial court, which is not bound by the findings of fact made by the advisory jury, will make its own independent findings. See Gulf Life Insurance Company; Hyde Properties v. McCoy, 507 F.2d 301 (6th Cir.1974). In essence, the parties are receiving what they contracted for-a trial by the court. In this regard, the advisory jury is a procedural tool that the trial court may utilize in cases in which the trial court determines that an advisory jury is likely to be helpful to the court in discharging its function.

''Vista Ctr. Venture v. Unlike Anything, Inc.'', 603 So. 2d 576, 578-79 (Fla. Dist. Ct. App. 1992).