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GPSolo Magazine

GPSolo January/February 2024: Trial Skills and Advocacy

Factors in Choosing a Civil Jury or Bench Trial: Finding Your Fact Finder

Michael Gabriel Olinik


  • Whether you put your case in the hands of a judge or a jury depends not only on your case but also on the judge, the jury pool, your client’s cost restraints, and your style of presentation.
  • When choosing whether to have a jury or judge decide the facts, it helps to consider the different experiences and perspectives of each fact finder.
  • A jury trial will almost always be more expensive than a bench trial because it takes more time, meaning more fees, and has additional costs.
Factors in Choosing a Civil Jury or Bench Trial: Finding Your Fact Finder
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Like sending a child off on his own for the first time, it is nerve-wracking to put your case in the hands of someone else. After months, if not years, of working out the facts of your case, from obtaining your client’s version of events to working through discovery, you will be presenting your story at trial. Opposing parties, meanwhile, are also excited to present their own stories, and if those two versions differ, they will seek to poke holes in your own tale. At the end of the day, our judicial system leaves it to the fact finder to decide which story will be considered legal reality, which will become the one official narrative that will decide your case. In whose hands do you trust your child’s future, a judge or a jury?

While you might not always have the luxury to choose between a bench or a jury trial, the choice may be pivotal when you do. Whether you put your case in the hands of a judge or a jury depends not only on your case but also on outside factors such as the judge, the jury pool, your client’s cost restraints, and even your own presentation style. It is important to consider and discuss all these factors with your clients from the very start of the case, as you do not want to leave to chance the decision of who ultimately will write the story of your case.

Know the Rules

The first step in deciding whether you want your case to be heard by a judge or a jury is to make sure you preserve that option in the first place, a process that begins for plaintiffs before the complaint is even written. The right to a jury in a civil trial differs from jurisdiction to jurisdiction, and some claims do not come with a right to a jury. For example, in California, although the state constitution guarantees a right to a jury trial, that right is limited to actions at law, while actions in equity are heard by the judge. The only time my legal research took me all the way back to English common law was in trying to determine whether a claim was legal or equitable in nature, ultimately affecting the right to a jury trial. Therefore, depending on the claims pleaded in the complaint, you may inadvertently commit your client to a bench trial before the case even starts if you do not have any claims with a right to a jury.

Considering a trial by a judge or jury is also vital to developing the theme of your case. Successful trial lawyers preach that you should start thinking about the theme of your case from your first pleading. Successful writers will remind you that to develop a good theme, you need to know your audience. Therefore, when a plaintiff’s attorney drafts a complaint or when a defense attorney drafts a motion, the attorney needs to think about the ultimate fact finder of the case and develop a theme that appeals to that fact finder. The theme you present to a judge may be very different from the theme you present to a jury. If you wait until trial to think about the fact finder, you may end up without a choice and be stuck with a theme that does not fit your audience.

If your case comes with the right to a jury trial, then you also must make sure you preserve that right. The manner of requesting a jury trial, the timing of the request, and the fees you must pay differ from jurisdiction to jurisdiction. Jurisdictions may also differ in the ways you can statutorily waive a jury trial, and some of those ways may be through inaction. All attorneys must know the litigator’s trinity—civil procedure, local rules, and chamber rules—to ensure that they properly request a jury trial and do not accidentally waive the right to a jury trial. Having a choice is the first step to making a choice.

Know Your Fact Finder

When choosing whether to have a jury or judge decide the facts, it helps to consider the different experiences and perspectives of each fact finder. Before you file the complaint, you may not know which judge your case will be assigned to, and you will not know your jury until the trial begins. There are still differences you can contemplate at the outset, and you can continue to do more research as the time to make the decision draws near.

Although there are technically no professional jurors in the United States, judges act as professional jurors whenever they are the fact finder. A judge is usually more predictable than a jury, and you can better understand one known fact finder with a track record rather than multiple unknown jurors with varying backgrounds. Judges have more experience than the average juror in parsing conflicting testimony, judging credibility, identifying key facts, and drilling down to the point of testimony. Typically, judges respond less to emotional testimony and fancy presentations. Judges have a better understanding of the law and how it applies to the facts of the case, so a lawyer does not need to spend as much time connecting dots or providing the context of why the testimony is necessary for the case. Once you know who will be your judge for trial, you can also research the judge’s background to get a better feel of how he or she has ruled in similar cases in the past.

Jurors, on the other hand, bring a wider variety of experiences to deciding your facts. Even though you will not know your jurors until after voir dire, jury pools have their own reputation. The jury pool in San Diego, a city with a higher military population, has a different reputation than Los Angeles. A jury pool in a rural portion of a state has a different reputation than jurors in more populous areas. Juries are considered to be more receptive to emotional testimony and a lawyer’s presentation than judges, but juries may need additional context or background to help them understand why a particular fact in your case is so important. Jurors are generally an easier audience to connect with, as their only role in a trial is to listen to the story and decide the facts by filling out a verdict sheet. As this is a novel experience for some jurors, they might be eager to listen to your case. Jurors, however, can be unpredictable; you do not know which facts the jurors may deem important, and they might not fully understand what they are asked to decide. Voir dire, therefore, is not only important for choosing your jurors but may also help shape how you present your case at trial to try to connect with the people who end up in the box.

In the end, judges trend more to certainty and jurors to chaos. Which is better, however, depends on your case.

Know Your Case

Once you know the rules and understand your potential fact finders, the decision of who to choose will depend on your case. You are the storyteller, trying to convince the fact finder that your version of events is what happened and hoping they deem it the legal reality of the case. The question becomes who will be more receptive to your story.

One component of your case will be how complicated the facts are. A jury sometimes has trouble with cases that have many facts, as they may not have the attention span to listen to weeks of testimony while picking out the key facts needed to make their decision. Some juries may flat-out not understand expert opinions, especially from experts who are not experienced at testifying to jurors. Judges might have more experience in following along and connecting the dots but do not bring the wider array of life experiences that comes with more brains in the box. While both judges and juries are generally good at spotting lies, a jury might have a harder time assessing a witness’s credibility than a judge.

Another component is how legally complicated the case is. Judges may have an easier time understanding complex legal cases than a jury. A case where the fact finder is determining whether a traffic light was red when an accident happened is very different from a case where the fact finder is determining whether a company met industry safety standards on a complicated product in the marketplace.

The damages in the case may also influence your decision. If the case is highly technical or for a set sum, it may make more sense to have a judge decide the case, as the judge is less likely to go off script and award inappropriate damages. Jurors tend to award higher damages, sometimes more than plaintiffs even ask for, making a jury trial more appealing for plaintiffs in cases where damages are not certain.

Your presentation style should also be taken into account. Some attorneys are better at being straightforward and addressing the judge, while other attorneys shine by presenting cases and arguments to the jurors. Even from case to case, depending on the facts and how complicated the law is, you may be a more effective advocate before a judge or a jury. At the end of the day, there are no style points awarded, just a verdict or a decision. It is your duty to put your client in the best position to win, so you must understand and factor in your own strengths and weaknesses to make the proper decision.

Finally, you must be prepared if your case will be heard by both a jury and a judge. In some actions, there may be a right to a jury trial on some claims but not on others. That means a jury will be deciding the facts for some of the claims and the judge on the remaining claims. Some jurisdictions may try the nonjury claims first, while others will try the jury claims first. If the nonjury claims go first, you will have to present the background of your case twice, first to the judge and then again to the jury. In these circumstances, it is vital to think about the conduct of the trial as early as possible, as that will affect your presentation and may even cause plaintiffs to dismiss some claims or any attorney to waive the right to a jury. Meeting and conferring with opposing counsel and with the court early in these circumstances will help you decide which fact finder to go with and, again, help you develop and display the theme of your case as early as possible.

Know Your Client’s Budget

After doing your due diligence of examining all the factors above, there is still one last factor that may trump all others, and that is your client’s budget. A jury trial will almost always be more expensive than a bench trial because it takes more time, meaning more fees, and has additional costs. For a jury trial, you must prepare jury instructions and verdict forms, prepare motions in limine, conduct voir dire, and pay the fees for the jury. Your presentation may be more elaborate with greater reliance on technology than just a bland exhibit binder. The trial is longer due to voir dire, reading the jury instructions, rounding up jurors whenever the trial is ready to resume, and answering juror questions.

The use of a jury also introduces more ways that there may be an error at trial that must be addressed in either post-trial motions or in an appeal. While the particulars of each of these tasks and costs will change from jurisdiction to jurisdiction, the higher costs may cause your client to opt for a bench trial to avoid that situation. If opposing counsel insists on a jury trial, you may have to face the increased costs anyway. It is important to inform your client of the increased costs if they are ultimately footing the bill.

Judge or Jury: That Is the Question

You will not always have the choice between a judge or a jury, but when you do, you must be prepared. In the end, you are the one who knows your case, knows your client, and, after doing due diligence, knows your choices in fact finders. Choosing your fact finder requires you to use all this knowledge to figure out who is in the best position to understand, believe, and embrace your version of the story so that your story becomes the official facts of the case. There is no single right answer to this choice, and it is possible that attorneys will disagree on which fact finder to choose. The key is to remember that you are trying to put your client in the best position to win, so your choice will often come down to who is more likely to believe your story.