November 04, 2019 Articles

Judge or Jury: A Tale of Two Trials

Learn why and how you may need to change your strategy when you elect to try your case to the bench.

By Scott F. Frerichs

I was married by a judge. I should have asked for a jury.
—Groucho Marx

Two recent matters, both involving construction disputes, highlight a significant difference between bench and jury trials. During a scheduling conference in the first matter, the judge emphasized that prior to his appointment to the bench, he was an accomplished construction litigator and could conduct a bench trial in less than half the time necessary to complete a jury trial. While the parties anticipated a three-week jury trial, the judge suggested four days to complete a bench trial. Both sides agreed on the spot. Given the short duration, the court’s calendar accommodated setting trial in less than six months.

During the scheduling conference in the second matter, a different judge also suggested a bench trial. One party refused to waive its right to a jury, and, following a lengthy discussion on the anticipated number of witnesses and exhibits, the judged deemed 14 trial days over more than 3 weeks necessary. Unfortunately, the court’s calendar could not accommodate a trial of that length for well over a year.

Beyond the old William Gladstone adage that “justice delayed is justice denied,” the sheer difference in cost in preparing for a bench trial as opposed to a jury trial presents a staggering reminder of the present state of the justice system.

My Client Wants a Bench Trial—What Do I Do Now?

Advance planning is required to have even the option of a jury trial instead of a bench trial. While the Seventh Amendment to the U.S. Constitution creates the right to a jury trial in civil matters in federal court, Rule 38 of the Federal Rules of Civil Procedure requires a party to formally demand a jury trial. A failure to make this affirmative request generally results in a waiver of that right. The demand may be included in a pleading, typically the complaint or answer, and must be filed in accordance with Rule 5(d). See Fed. R. Civ. P. 38(d). Conversely, unlike federal practice, many states’ rules establish a jury trial as the default method unless all parties affirmatively waive that right in writing. See, e.g., Ariz. R. Civ. P. 38.


While fewer trial days certainly result in reduced cost, the largest savings comes from changes to pretrial practices. Virtually every jury trial of significance requires substantial time devoted to proposed jury instructions, motions in limine, Daubert motions, voir dire, determining the preferred juror profile and appropriate use of jury consultants, witness preparation, and developing exhibits. In a bench trial, some of these tasks are no longer necessary (e.g., jury instructions and voir dire), and some are handled in a significantly different manner (e.g., some witnesses may not be called at all, while others are handled by witness summaries).

Strategy may also change in other ways. For example, while motions in limine are permitted in a bench trial, the attorney must consider not only whether such a motion is the best use of resources but also whether it highlights evidence that harms the case. Daubert motions are a stickier issue. The court’s “gatekeeper” function still applies in a bench trial. Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002) (“While these concerns are of lesser import in a bench trial, where no screening of the factfinder can take place, the Daubert standards of relevance and reliability for scientific evidence must nevertheless be met.”); see also Perez v. State of Texas, 2014 WL 12480146 (W.D. Tex. 2014) (“the Court cannot simply abandon its duty to scrutinize expert testimony under Daubert” in a bench trial). However, “the judge need not conduct a Daubert (or Rule 702) analysis before presentation of the evidence,” but “must determine admissibility at some point.” Kan. City S. Ry. Co. v. Sny Island Levee Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016). Further, the judge may implement a flexible approach and address objections during trial. Perez, 2014 WL 12480146; see also Purdue Pharma. L.P. v. Amneal Pharma., LLC, No. 15-1152-RGA (D. Del. July 6, 2018).

Because Rule 52 and most state counterparts require that “[i]n an action tried on the facts without a jury . . . the court must find the facts specifically and state its conclusions of law separately,” some judges ask the parties to submit proposed findings of fact and conclusions of law before trial. This presents a great opportunity to create a road map of the case. However, even if the judge does not make this request, attorneys should consider submitting a bench memo that can be easily modified following trial for purposes of the findings of fact and conclusions of law.

During Trial

When you see a lawyer trying to pick a smart jury, you know he’s got a strong case.
—F. Lee Bailey

Every attorney has been part of a jury trial in which opposing counsel relies on ad hominem attacks and caters to the sympathies and prejudices of the jurors—or even deliberately tries to confuse them. However, the common trial maxim that if a case “is weak on the facts, argue the law, and if weak on the law, argue the facts” no longer applies under a judge’s sharp attention to what is important. Such tactics are reined in quickly during a bench trial. In addition, Rule 48 requires that “the verdict must be unanimous.” If the case is strong, convincing one highly qualified “fact finder” presents a far better option than the risk of one juror blowing up the case.

The jury consists of twelve persons chosen to decide who has the better lawyer.
—Robert Frost

Once trial begins, the differences between a bench trial and jury trial can be broken down into two main categories: (1) the audience and (2) logistics. When presenting to a jury, experienced trial lawyers understand the importance of creating a certain impression, even to the point that the way of asking a question is more important than the witness’s answer. The art of persuading juries often lies in storytelling, with a well-outlined beginning, middle, and end. This requires carefully calculating the order of witnesses and oftentimes calling a witness on the belief a jury expects that witness. Contrarily, judges emphasize the use of witness summaries (which are easy to plug into findings of fact) and downplay witness order. Indeed, in a bench trial, parties are more likely to stipulate to certain facts, when they otherwise would not when a jury might “like” or “dislike” a particular witness.

Another significant, and helpful, difference comes from the almost immediate feedback in a bench trial. A common quandary for lawyers is determining whether a jury understands the evidence or argument. The typical strategy for that uncertainty is ad nauseam repetition to ensure the jury “got it.” Even in those jurisdictions where jurors may ask questions, juror questions come following testimony and are filtered by the court. By contrast, a judge interjects when necessary during testimony to clarify or move the topic along and offers notice on what evidence the judge would find helpful or what additional information is needed to better understand the claims and defenses.

A never-ending source of frustration for attorneys (and their staff) is witness scheduling. Trial judges universally recognize the sacrifices jurors make to participate in the process and consequently zealously enforce scheduling—no “gaps” in the proceedings, a strict start and stop time, and even time allocations to each side. Any “outside the presence of the jury” issues are dealt with by expanding counsel’s day and without breaching the integrity of the jury’s schedule. With a bench trial, the proceedings need not occur on consecutive days, and a trial judge may agree to stay late, start earlier, or even convene for just a portion of a day.

Almost every jury trial includes a defendant moving for judgment as a matter of law at the conclusion of the plaintiff’s case pursuant to Rule 50. Bench trials instead use Rule 52(c) (or most states’ similar counterparts), which provides for judgment on partial findings. The standard for ruling on this motion differs from the standard for a Rule 50 ruling because the trial judge sits as the fact finder. The judge “is not required to draw any inferences in favor of the non-moving party; rather, the district court may make findings in accordance with its own view of the evidence.” Ritchie v. United States, 451 F.3d 1019, 1022 (9th Cir. 2006). Also, unlike Rule 50 practice, a party need not move for a judgment on partial findings in order to later argue the evidence was insufficient to support the findings. See Fed. R. Civ. P. 52(a)(5).


Far more often than not, a jury’s verdict is a general verdict where the jury simply checks a box noting which party it finds in favor of and, if that decision results in damages, a handwritten number. In a bench trial, Rule 52(a)(1) requires that the “court must find the facts specifically and state its conclusions of law separately.” While a jury verdict rarely affords the parties an understanding of how the jury resolved disputed facts or applied the law, a bench decision clearly provides the facts found by the court and how the court applied the law to those facts. Prevailing on appeal may be more difficult on the wrong side of a bench trial, but the appellate issues will be much more focused.

Scott F. Frerichs is chair of construction, fidelity, and surety with Jennings Strouss in Phoenix, Arizona.

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