It is well known that the portion of legal matters determined by trial has largely declined over time. Most cases are settled out of court. However, trials are still a very important aspect of the American court system. There are two different types of trials —jury trials and bench trials. A layperson likely associates most trials with a jury because of popular television show references such as Law & Order and The Good Wife. Although jury trials receive more attention than bench trials, it is important that bench trials are not overlooked. In the United States, if a civil case makes it to trial, then the matter will most likely be tried from the bench unless a party requests a jury. Thus, as a legal practitioner, it is essential to understand some of the nuances of a bench trial. This article provides important tips for a bench trial to ensure that you are positioned for success.
Shape the Judge’s View of Your Case Prior to Trial
In a jury trial, the ultimate decision-maker is the jury. Jurors generally have no knowledge of the parties’ pretrial positions, theories or actions. Conversely, in a bench trial, the ultimate decision-maker is the judge. Unlike jury trials where a juror may learn little to nothing about a case before trial, cases tried from the bench present unique opportunities to shape the judge’s opinion of the case prior to trial. This can be a good or bad thing. In a bench trial, there is ample opportunity to present the court with arguments throughout the pretrial proceedings.
For instance, a party may raise a creative argument in hopes of obtaining an order granting a motion to dismiss or motion for judgment on the pleadings. Even if the motion is denied, counsel is shaping the judge’s view of the case well before one piece of evidence is ever admitted at trial. A thoughtful pretrial brief offers a great opportunity for you to educate the judge about your case as well as persuade the judge to view the facts from your point of view. For this reason, it is important that lawyers are careful to refrain from employing implausible arguments. Preserve your credibility with the court.
It is also vital to leave room for your case to grow and take form as the parties embark on discovery. With bench trials, special consideration must be made to safeguard against narrowing the scope of your arguments too early in the pretrial proceedings. Thus, being cognizant of how pretrial positions, theories and actions are perceived by the court is critical to your success. With that being said, do not be afraid to take risks with your positions, but also thoroughly weigh those risks among your legal team and with your client.
Use the Judge’s Published Opinions as a Roadmap to Success
Unlike a jury trial, in which you cannot be certain about the dynamics of the jury or the outcome of a trial, a bench trial presents the parties with a unique ability to peek behind the curtain. The latest decisions rendered by a judge are a roadmap to your success. Essentially, you are handed—free of charge—a substantive and procedural guide to build your case. For example, within an opinion, the judge may: provide a summary of what arguments were most persuasive during trial, identify particular conduct among the parties that was not received well by the court, provide insight on preferences regarding motions practice, and identify legal authority that may not have been considered otherwise. Although a judge’s opinion may not be exactly on point with the facts, claims, and legal arguments in your case, these opinions provide more insight than might first meet the eye, especially in the context of a bench trial.
Know and Understand Your Audience
According to an article published on the Forbes website entitled Why Knowing Your Audience is the Key to Success by Jayson DeMers, when you know your audience, you set yourself up to get optimal results. The same rule applies for bench trials.
First, the biggest mistake lawyers make for bench trials is failing to know the full extent of their audience. They believe that there is an audience of one—the judge. However, in the case where a judge has a law clerk, this is a huge mistake. Law clerks are very important to the legal process because they are the liaisons between you and the judge. They directly engage with the judge and help make very important decisions throughout a bench trial. Accordingly, the moment you file your case and receive information about the judge that will preside over the matter, you should: research the judge and pull his or her recent cases, find out if the judge has a clerk, research the clerk, and ask other lawyers about their experience with the judge and/or clerk. Essentially, you are compiling vital analytics about your audience and knowing your audience is one of the best ways to stay ahead of your competition.
Second, once you know your audience, you should also understand your audience. For instance, you may present your case differently at a bench trial than you would to a jury. Never assume that a judge knows everything there is to know about a case; but a lawyer should also be mindful that a judge has a level of knowledge of the law that surpasses that of a juror. This may permit you to tailor the presentation of your case to remove parts of your opening argument, direct examinations, cross examinations, and closing argument. Brevity is always appreciated. Your case should still be compelling, but you may be able to quickly review less complex aspects of your case, so that you can focus on the complexities that a judge will want to spend more time considering.
Prepare to Be Flexible
Knowing and understanding your audience in a bench trial often goes hand in hand with being flexible. There are some peculiar aspects of a bench trial that you should not let throw you off your game. For instance, a judge may be a little more lenient with the rules of evidence in a bench trial. In this circumstance, if you disagree with a ruling from the bench, it does little to no good to argue your position. Make sure that you preserve your objection and move on with your case. During bench trials, a judge may stop an attorney mid-examination of a witness to ask the witness a question. A judge may even direct you to move on from a point that you had every intention of emphasizing with a little theatricality. Again, if the judge requests that you move on, listen to the judge.
You should be prepared to deal with these nuances in the moment. It is always important to have a plan and strategy for your case, but prepare yourself to adjust the plan based on the judge’s suggestions, questions, or direct requests.
In summary, although every case presents its own set of unique facts and challenges, there are ways to ensure that you have positioned yourself for success. There are no concrete rules for trying a bench trial, but employing the foregoing tips may significantly affect your experience. While this list of tips is certainly not exhaustive, it serves as a great starting point. Remember that success is no accident; it is the result of work hard and preparation.
Ariel E. Harris is with Nelson Mullins Riley & Scarborough LLP, Charlotte, North Carolina.