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.