Procedural Considerations in a Bench Trial
Although bench trials and jury trials are procedurally similar in many ways, the most obvious difference is that, in a bench trial, the court and the parties avoid the jury selection process and the types of issues that arise when dealing with jurors, such as scheduling concerns, the need for longer and more structured breaks, and the general unpredictability.
More nuanced differences may also exist between the two types of trials in the procedures governing:
• Pretrial matters, such as the final pretrial conference and pretrial submissions (see Pretrial Procedures).
• The trial process and evidentiary issues (see Trial and Evidentiary Procedures).
• Submissions after trial (see Post-Trial Submissions and Judgment).
As in a jury trial, at the close of discovery and after rulings on dispositive motions (if any), a court preparing for a bench trial typically holds a final pretrial conference.
During the conference, the court and the parties may discuss whether the trial will be held over consecutive days or will be spread out, with days or even weeks between trial days. The court typically sets the trial start date, determines the amount of time appropriate and necessary for receiving the evidence, and blocks additional days or weeks accordingly. The court may also set the start and finish times of each trial day. However, once trial begins, the schedule in a bench trial is often more flexible than a jury trial because the court can elect to conduct the trial for longer hours without worrying about jurors’ schedules (see Efficiency and Flexibility).
Other issues that may arise or that the parties may wish to address during the final pretrial conference include:
• Pretrial submissions. If it is not already clear from the judge’s individual rules or the court’s local rules, the court may explain what pretrial submissions it expects to receive, in what form, and when. The types of pretrial submissions required in a bench trial typically differ from those in a jury trial, and may include items like:
• written direct testimony (see Eliciting Witness Testimony); and
• statements on the parties’ factual and legal positions.
• Evidentiary procedures. In addition to addressing specific issues surrounding witnesses, exhibits, and deposition designations (see Trial and Evidentiary Procedures), the parties should seek the court’s guidance on certain evidentiary logistics, such as:
• how the court prefers the parties to display exhibits;
• what technology will be permissible and available through the court to display exhibits, and what technology the parties must bring themselves;
• whether the parties may store and secure technology, exhibits, and other materials at the courthouse during off-hours;
• whether the court wants paper copies of exhibits;
• whether witnesses can be handed paper copies of exhibits; and
• whether the court wants witnesses to have binders with all potential exhibits that will be offered or used on cross-examination. This helps save the time it takes to approach a witness with each piece of evidence, a formality that courts more often require in jury trials.
As in a jury trial, parties typically must exchange witness lists, exhibit lists, and deposition designations before a bench trial begins. In most cases, the parties must also submit a proposed final pretrial order (sometimes called a pretrial stipulation or pretrial statement) and other documents to the court before the trial begins. The timing, content, and procedure for these pretrial submissions may vary depending on the judge’s preferences and the court’s local rules.
For more on final pretrial conferences in federal court and drafting a final pretrial stipulation, see Practice Note, Final Pretrial Order Under FRCP 16(e): Overview and Final Pretrial Order Under FRCP 16(e) Checklist. For a sample pretrial stipulation that counsel can use as a guide in a federal civil case, see Standard Document, Final Pretrial Order Under FRCP 16(e).
In bench trials, some courts require a relatively short pretrial memorandum that summarizes the facts and legal issues. These courts may require the parties to either include this pretrial memorandum as part of the pretrial stipulation or submit it as a separate filing. Alternatively, because a court must make factual findings separately from legal conclusions in a bench trial (FRCP 52(a)(1)), some courts require the parties to file before trial detailed proposed findings of fact and conclusions of law that the court can edit and adopt as part of its final decision or that the parties can supplement after trial (see, for example, 56th St. Inv’rs, Inc. v. Worthington Cylinders Miss., LLC, 2016 WL 866660, at *1 (E.D. Va. Mar. 7, 2016)).
These pretrial submissions are an excellent opportunity for counsel to:
• Highlight strong evidence and legal arguments to the court.
• Explain weaknesses in evidence or legal arguments.
• Set the stage for a case.
• Help ensure that written direct testimonies, cross-examination outlines, and exhibit lists are complete.
As in jury trials, courts conducting bench trials typically require the parties to submit before trial any motions in limine to address known evidentiary or legal issues, including any Daubert motions to exclude experts (see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). However, unlike in jury trials, courts in bench trials may reserve ruling on motions in limine until they issue a written decision on the law and facts after trial. Courts often proceed in this order because judges, unlike juries, are considered sufficiently sophisticated to disregard evidence later in their analysis if they ultimately determine that the evidence was irrelevant or otherwise inadmissible.
For a sample motion in limine and supporting memorandum of law that counsel can use to exclude evidence from a federal civil trial, see Standard Documents, Motion in Limine: Motion or Notice of Motion (Federal) and Motion in Limine: Memorandum of Law (Federal). For information on the arguments counsel may use to exclude evidence through a motion in limine, see Practice Note, Evidence in Federal Court: Overview.
Trial and Evidentiary Procedures
One of the most significant procedural differences between a bench trial and a jury trial is that a court may elect to reserve decision when evidentiary challenges occur in a bench trial, rather than rule on them when they arise as is typical in a jury trial.
Reserving judgment on evidentiary objections may help the trial proceed more efficiently and afford the court time for a more careful review of the proposed evidence before issuing a final decision. The parties should determine if the court prefers to address evidentiary issues when they arise or at another set time, such as the start of the next trial day.
In addition to the evidentiary matters addressed at the final pretrial conference (see Pretrial Procedures), it is also critical for counsel to determine:
• Whether the court prefers the parties to submit witness affidavits or declarations instead of live direct testimony and, where live testimony is required, how the court prefers to handle the order of the witnesses and gaps between witnesses (see Eliciting Witness Testimony).
• How the court prefers the parties to move documents or data into evidence (see Entering Exhibits into the Record).
• How the court wants the parties to present deposition designations at trial (see Entering Deposition Designations into the Record).
• Whether the court wants to eliminate opening statements and closing arguments (see Opening Statements and Closing Arguments).
Eliciting Witness Testimony
In place of live direct testimony at a bench trial, some judges require or allow parties to submit written witness affidavits or declarations containing each fact or expert witness’s direct or rebuttal testimony (see, for example, Kislin v. Dikker, 2017 WL 3405533, at *7 (S.D.N.Y. Aug. 7, 2017); Chevron Corp. v. Donziger, 2013 WL 5548913, at *1-2 (S.D.N.Y. Oct. 7, 2013)).
This practice allows counsel to forgo drafting direct examination outlines and preparing witnesses for live direct testimony, while still subjecting the witness to live cross-examination and live or written redirect or rebuttal testimony (see, for example, In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 960 n.125 (C.D. Cal. 2015), aff’d sub nom. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) and 674 F. App’x 654 (9th Cir. 2017); Wax NJ-2, LLC v. JFB Constr. & Dev., 111 F. Supp. 3d 434, 437 (S.D.N.Y. 2015)).
Typically, counsel must draft written statements from each testifying witness, often months before the trial begins. A court may set a staggered schedule for written direct testimony. For example, it may allow the party with the burden of proof to serve its written direct testimony first, and then submit rebuttal or reply declarations after the opposing party submits its fact and expert witness statements. Unless the parties agree to waive cross-examination, the witness typically must appear in court to enter the direct testimony into evidence and submit to cross-examination at trial. If the judge’s individual rules do not address this scenario, the parties should raise it with the court (such as at the pretrial conference) to confirm the court will accept written testimony without the witness’s presence in court to swear to it.
When preparing witnesses for live testimony at a bench trial, counsel should instruct the witness that:
• When counsel is conducting the examination, the witness should face counsel and address any answers to counsel, rather than the judge.
• The judge may interrupt counsel conducting direct or cross-examination and ask the witness a question directly, which the witness should answer as appropriate.
• The witness should provide direct and nonargumentative responses, especially to any questions that the judge poses.
As in a jury trial, it is critical for counsel to accurately estimate the length of a witness’s testimony to gauge when the next witness should be in the courthouse and ready to take the stand. However, counsel and witnesses should nonetheless prepare for the court to take witnesses out of order if timing or scheduling requires it.
If a witness ends early but the next witness is not yet available, some courts may allow counsel to play or read deposition designations into the record to fill these gaps (see Entering Deposition Designations into the Record).
Entering Exhibits into the Record
How and when parties enter exhibits into the record at a bench trial, and when parties may argue any objections to exhibits, vary depending on the judge.
For example, a judge who permits parties to submit direct testimony through written affidavits or declarations may require the party offering the testimony to move all exhibits referenced in the affidavit or declaration into the record at the same time it offers the written direct testimony at trial. Alternatively, the court may prefer that counsel enter in all evidence after live cross-examination or redirect of a witness. In cases where exhibits are presented during live direct testimony, some courts may prefer that the parties enter an exhibit into evidence as it is shown to a witness, while other courts may prefer that the parties enter all relevant exhibits at the end of a specific witness’s testimony. Counsel should ascertain the court’s exact preferences during any pretrial conference (see Pretrial Procedures).
To determine whether to file or store the exhibits at the trial’s conclusion, counsel should consult the district court’s local rules and the judge’s individual rules. Some courts may require the parties to file all trial exhibits, while other courts prohibit parties from filing them absent a court order and instead require the parties to keep them.
Entering Deposition Designations into the Record
The procedure for entering deposition designations into the record during a bench trial also varies by judge.
For example, some judges require counsel to read the deposition questions into the record, and then have a paralegal or other support staff enter the witness box and read the deponent’s responses so that a court reporter can take down the exchange for the trial record. Other judges require the parties to play the deposition testimony, if recorded, in open court. Some judges simply receive the deposition designations and note their receipt in the trial record or require the parties to file them on the docket before trial (see, for example, Armenian Assembly of Am., Inc. v. Cafesjian, 746 F. Supp. 2d 55, 74 (D.D.C. 2010)).
A court may require parties to mark and offer as evidence the designated transcript portions. A court may also opt to either rule on any objections to the designations before the parties present the testimony at trial or reserve ruling until after trial.
For more on deposition designations, see Practice Note, Preparing for Trial (Federal): Prepare Deposition Designations.
Opening Statements and Closing Arguments
Many judges dispense with opening statements in bench trials because of the extensive pretrial submissions that they often require. A judge typically familiarizes herself with these submissions before the bench trial begins and therefore does not require the same overview of a case that would benefit a jury.
However, some judges may grant a party’s request to provide an opening statement or presentation. If a court allows opening statements, counsel should keep them concise and limit any theatrics that might be more appropriate when attempting to engage a jury. Counsel should also expect that a judge may be likely to interrupt counsel’s presentation and direct counsel to address the issues that the court believes are the most critical. Counsel giving an opening statement in a bench trial should be prepared to deviate from a scripted presentation.
Similarly, many judges preclude counsel from offering closing arguments at the end of bench trials. Instead, courts are more likely to request additional written submissions that incorporate the testimony elicited at trial and reference only the admitted evidence. If a court permits closing arguments, counsel should consider whether using charts or demonstratives might help the court process all of the evidence that was presented at trial, as in a jury trial.
Counsel should also be aware that some courts may schedule closing arguments for a date after post-trial submissions are due (see Post-Trial Submissions and Judgment). In these cases, the closing arguments may occur weeks or months after the bench trial concludes.
For guidance on opening statements and closing arguments in federal court, including information on making and responding to objections during opening and closing and the timing and order of the presentations, see Practice Note, Opening Statements and Closing Arguments in Civil Jury Trials.
Post-Trial Submissions and Judgment
To aid the court in making the required separate factual findings and legal conclusions in a bench trial (FRCP 52(a)(1)), some courts require parties to submit after trial proposed findings of fact and conclusions of law, or to supplement proposed findings of fact and conclusions of law that the parties submitted before the trial began (see, for example, Parham v. CIH Props., Inc., 208 F. Supp. 3d 116, 121-22 (D.D.C. 2016); 56th St. Inv’rs, Inc., 2016 WL 866660, at *1; see also Pretrial Procedures).
In these post-trial submissions, counsel should:
• Reference only admitted testimony and evidence.
• Concentrate on issues that the court signaled interest in during trial.
• Address other issues only to the extent necessary to preserve them for appeal.
For resources that counsel can use to prepare, draft, serve, and file a variety of post-judgment motions in federal civil litigation, see Post-Judgment Motion Toolkit (Federal).