One of the most unsettling aspects of lender liability litigation is that a borrower's spurious claims of lender misconduct are often resolved by a jury, whose members may identify more with the borrower than the lender.

Lenders' attempts to avoid the vagaries of jury resolution have received a mixed review in the courts. The standard clause in most lending agreements, in which the borrower agrees to waive trial by jury in any dispute with the lender, may or may not be enforced, depending on the particular jurisdiction in which a suit is brought.

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