I write separately because the majority fail to set forth any guidelines as to when an attorney may act without the express consent of his or her client. Rather than providing clarity in this troublesome area,1 the majority have introduced uncertainty. Further, the decision to waive the constitutional right to a trial by jury must always rest with the client, not the attorney.
I.
The allocation of decision-making authority between client and attorney is a difficult problem. It involves practical, ethical and philosophical considerations. (See Burt, Conflict and Trust Between Attorney and Client (1981) 69 Georgetown L.J. 1015; Note, Balancing Competing Discovery Interests in the Context of the Attorney-Client Relationship: A Trilemma (1983) 56 So.Cal.L.Rev. 1115 [hereafter Note, Balancing Competing Discovery Interests]; Martyn, Informed Consent in the Practice of Law (1980) 48 Geo.Wash.L.Rev. 307; Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession (1979) 128 U.Pa. L.Rev. 41; Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 Am.Bar Found. Research J. 1003; Lehman, The Pursuit of a Client’s Interest (1979) 77 Mich. L.Rev. 1078.) Clear guidance on the scope of an attorney’s implied and apparent authority and the legal consequences of the allocation of that authority would benefit both attorneys and clients. Unfortunately, the majority fail to give any guidance.
A reading of the cases and authorities reveals that when courts refer to “substantial rights,” they mean important or “essential” rights (City of Fresno v. Baboian, supra, 52 Cal.App.3d at p. 758), rights “ ‘affecting the merits of the cause’ ” (1 Witkin, Cal. Procedure (2d ed. 1970) Attorneys, § 113, p. 125) or “serious steps” in the litigation (ibid.). For example, the decision to settle or dismiss a cause of action affects a “substantial right,” and an attorney must obtain the client’s consent before taking either action. (Bowden v. Green (1982) 128 Cal.App.3d 65, 73 [180 Cal.Rptr. 90]; Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 508-509 [136 Cal.Rptr. 86]; Linsk v. Linsk (1969) 70 Cal.2d 272, 278 [74 Cal.Rptr. 544, 449 P.2d 760].) Similarly, because a “substantial right” is affected, an attorney has no independent authority to waive the right to appeal (1 Witkin, supra, § 121 at pp. 131-133), to eliminate an essential defense (Fresno City High School Dist. v. Dillon (1939) 34 Cal.App.2d 636, 646-647 [94 P.2d 86]), to dispose of a client’s property (Woerner v. *410Woerner (1915) 171 Cal. 298, 299 [152 P. 919]) or to stipulate to a finding of negligence irrespective of the record (Harness v. Pacific Curtainwall Co. (1965) 235 Cal.App.2d 485, 491 [45 Cal.Rptr. 454].) (See Linsk, supra, 70 Cal.2d at pp. 277-278 and 1 Witkin, supra, § 116, at p. 127 for additional examples.)
When no substantial right is implicated, an attorney must be free to act independently. It is essential to the efficient conduct of the client’s case and the accomplishment of the client’s ultimate goals that an attorney have the authority to make independent decisions in the day-to-day management of civil litigation. This authority “allow[s] the lawyer-professional to apply his technical expertise!.]” (Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, supra, Am.Bar Found. Research J. at p. 1004.) It also protects the lawyer’s professional reputation and preserves the lawyer’s role as an officer of the court. (See 1 Witkin, supra, § 114, at p. 125.)
The effective management of litigation requires independent decisions by the attorney regarding not only procedural matters but also certain substantive matters—for example, it may include the legal theories or arguments to be advanced. Routine and technical matters, including those ordinary matters which arise in the course of litigation, may be handled independently by the attorney as a necessary aspect of the professional management of the case. On the other hand, decisions which affect “substantial rights,” whether they be denominated “procedural” or “substantive,” must involve the client.2
Rather than define the standard as “substantial rights” versus “procedural matters,” the inquiry should seek to differentiate between decisions affecting important, substantial rights and decisions on routine matters. This approach would provide the practitioner with more useful guidance.
II.
Whatever formulation is used to determine when an attorney has the authority to make decisions on the client’s behalf, the decision to waive the *411fundamental right to a jury trial should rest with the client. By stipulating to binding arbitration, the attorney in this case deprived his client of her right to a jury trial without her knowledge or consent.
The right to trial by jury, in both civil and criminal matters, is “a basic and fundamental part of our system of jurisprudence. ” (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 [141 Cal.Rptr. 604]; accord Ramirez v. Superior Court (1980) 103 Cal.App.3d 746, 756 [163 Cal.Rptr. 223].) It is a historically important right, which has been called “ ‘the principal bulwark of our liberties. ’ ” (Patterson, Juries in Civil Cases (1934) 9 State Bar J. 208, 209, quoting 3 Blackstone’s Commentaries, ch. XXIII, p. 349.) The right to jury trial in civil cases is expressly guaranteed by our Constitution. (Cal. Const., art. I, §16.)3
Under the California Constitution, the right to a jury in a civil cause “may be waived by the consent of the parties expressed as prescribed by statute.” (Art. I, § 16, italics added.) The right to a trial by jury is fundamental and “should be zealously guarded by the courts.” (Byram, supra, 74 Cal.App.3d at p. 654; accord Ramirez, supra, 103 Cal.App.3d at p. 756.) “In case of doubt . . ., the issue should be resolved in favor of preserving a litigant’s right to trial by jury. . . . [f] That right may not be waived by implication, but only affirmatively and in the manner designated by Code of Civil Procedure section 631.” (Byram, supra, 74 Cal.App.3d at p. 654.)
Section 631 of the Code of Civil Procedure describes the ways in which a party may waive the right to trial by jury. These include the filing of written consent with the clerk or judge and the offering of oral consent in open court. (Code Civ. Proc., § 631, subds. 2, 3.)4 Although the acts described will normally be performed by counsel, the statute by its terms is concerned with waiver of a jury trial “by the several parties. ” (Code Civ. Proc., § 631, italics added.)
Nothing in the statute gives an attorney the authority to waive the client’s right to a jury trial without the client’s knowledge and consent. As a Washington appellate court has held in interpreting similar constitutional and statutory provisions, “no client should be at the mercy of his attorney, who, without the authority or knowledge of his client stipulates away such a right *412directly contrary to the client’s interest. ...” (Graves v. P. J. Taggares Co. (1980) 25 Wn.App. 118 [605 P.2d 348, 353], affd. (1980) 94 Wn.2d 298 [616 P.2d 1223];5 see also Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 718 [131 Cal.Rptr. 882, 552 P.2d 1178] (dis. opn. of Mosk, J.).) If an attorney has no independent power to stipulate to a settlement, to eliminate an essential defense, or to waive the right to an appeal, surely he should have no power to waive the client’s fundamental constitutional right to a trial by jury.
An attorney should explain to the client the strategic considerations that determine whether a jury trial or some other form of dispute resolution should be utilized. The attorney’s professional expertise is vital to any decision. However, the ultimate determination to waive a right as fundamental and “substantial” as the right to a jury trial should rest with the client.
See, e.g., City of Fresno v. Baboian (1975) 52 Cal.App.3d 753, 757 [125 Cal.Rptr. 332] (“The rules delineating the extent of an attorney’s authority are not altogether clear and concise. . . .”).
Commentators who advocate an “informed consent” doctrine for the attorney-client relationship favor “complete communication” between an attorney and client so that decisions regarding litigation can be made through their “combined effort and knowledge.” (Note, Balancing Competing Discovery Interest, supra, 56 So.Cal. L.Rev. at p. 1124; see also Martyn, Informed Consent in the Practice of Law, supra, 48 Geo. Wash. L.Rev. 307; Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, supra, 128 U.Pa. L.Rev. 41.) One commentator cites evidence that “plaintiffs who actively participated in their cases obtained significantly better results than those who delegated responsibility to an attorney.” (Note, Balancing Competing Discovery Interests, supra, at p. 1124.)
Article I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be secured to all . . .
Waiver may also result from the failure to appear at trial, to announce at the prescribed time that a jury is required, or to deposit jury fees and transportation costs. (Code Civ. Proc., § 631, subds. 1, 4-7.) Because of the importance of the right to a jury trial, section 631 gives the trial court discretion to allow a jury trial even if the party has previously waived that right. (Code Civ. Proc., § 631; Hernandez v. Wilson (1961) 193 Cal.App.2d 615, 618-619 [14 Cal.Rptr. 585].)
In Graves, defense counsel in a civil trial withdrew the demand for a jury without the client’s authorization. The appellate court vacated the judgment entered after a nonjury trial and remanded the case. (Graves v. P. J. Taggares Co., supra, 605 P.2d at p. 353.) The Washington Supreme Court agreed with the Court of Appeals, holding that “the client must specifically consent to the withdrawal of a jury demand.” (Graves v. P. J. Taggares Co., supra, 616 P.2d at p. 1228.) The Washington Constitution guarantees the right to a trial by jury in a civil action, using language which is very similar to the provision in the California Constitution. (Wash. Const., art. 1, § 21.)