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.