context: . Indeed, while it may have been the case, it cannot be conclusively determined from the record that the Magistrate Judge notified the parties prior to trial that he intended to convene an advisory jury under Rule 39(c). In this regard, we acknowledge the approach of other circuits which indicate that the failure to provide such notice is reversible error, as the parties may have engaged in a different trial strategy had they known of the jury's advisory capacity.
citation_a.signal: see
citation_a.identifier: 865 F.2d 49, 53
citation_a.parenthetical: requiring a district court to "notify both sides of a jury's advisory status no later than the time at which the jury selection has begun"
citation_a.sentence: See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir.1992) (examining the plain language of the rule and policy considerations of trial tactics and concluding "the rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and the parties be made aware of it, before the case is submitted”); Bereda v. Picker ing Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir.1989) (requiring a district court to "notify both sides of a jury's advisory status no later than the time at which the jury selection has begun”); Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (recognizing that "there are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury”); cf. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 827 (2d Cir.1994) (recognizing "that such notice is preferable,” rejecting a per se rule of notice, and requiring instead that the complaining party show "demonstrable prejudice”).
citation_b.signal: cf.
citation_b.identifier: 29 F.3d 821, 827
citation_b.parenthetical: recognizing "that such notice is preferable," rejecting a per se rule of notice, and requiring instead that the complaining party show "demonstrable prejudice"
citation_b.sentence: See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir.1992) (examining the plain language of the rule and policy considerations of trial tactics and concluding "the rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and the parties be made aware of it, before the case is submitted”); Bereda v. Picker ing Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir.1989) (requiring a district court to "notify both sides of a jury's advisory status no later than the time at which the jury selection has begun”); Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.1981) (recognizing that "there are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury”); cf. Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 827 (2d Cir.1994) (recognizing "that such notice is preferable,” rejecting a per se rule of notice, and requiring instead that the complaining party show "demonstrable prejudice”).