Trial: General Considerations

Vol. 1, No. 8

As a member of Fulbright & Jaworski LLP's litigation section since 1993, Cecil Kuhne has represented clients in federal and state court proceedings involving complex commercial disputes, business torts, and product liability. His experience extends to litigation concerning contractual interpretation, misappropriation of trade secrets, liability for pharmaceutical products and medical devices, professional malpractice, environmental degradation, and oil and gas development. He has long been an enthusiastic foodie, and he would gladly become a gourmand or a gastronome (if he could only spell it).


  • Learn about governance of stored genetic material.
  • Learn who tends to be favored in a dispute.


From Convincing the Judge


A plaintiff brought suit in a New Jersey court for patent infringement of a complicated electrical circuit that monitored the cockpit controls of a small aircraft. The technology involved was daunting even to the engineers and thereby presented a common challenge to the lawyers presenting the case: would the jury be able to understand it?

First and foremost, your job as a trial lawyer is to make the case understandable. This is easier said than done. But a skilled litigator can keep the evidence simple, explain it fully, and in the process make the situation clear that his client should win.

Of course, each trial is completely unique, and the challenge of keeping a lot of balls in the air at once is not to be understated. Making recommendations for effective trial advocacy is no doubt much easier than following them. Every trial lawyer is well advised to heed the suggestions of those behind the bench, since they take careful notice of which techniques are most effective in the presentation of a case.


Importance of Discernment

Effective trial advocacy is said to be 90 percent preparation and 10 percent presentation. And there is no question that preparedness is absolutely essential to success at trial. But preparation is one thing, and overkill is quite another.

In those cases that eventually go to trial, judges express surprise that even experienced trial lawyers sometimes have difficulty emphasizing the important issues and omitting the less relevant ones. A trial lawyer is far more effective when focusing clearly and presenting only the facts necessary to prove the claims or defenses at hand. Knowing where to draw the line is an important skill.


The Value of Checklists

Many judges suggest making a checklist outlining (depending on your client) the claims or defenses in the case and the facts needed to prove each one. The names of witnesses who will testify as to the relevant facts and documents to be introduced in evidence should be listed next to each claim or defense on the checklist. If it is not on the checklist, it should be left out of the trial.

Judges say they spend too much time in trial wondering about the relevance of certain witnesses or exhibits. They find it frustrating to sit through unnecessary testimony or pore over mounds of irrelevant documents.

Juries try hard to do their job, but overkill by the attorneys affects their ability to do so efficiently. An organized presentation makes a much better impression than including everything imaginable in the hope that something will work. The advice of judges is simple: Get to the point.


Bench Or Jury Trial

Many attorneys fail to appreciate the distinctions between jury and bench trials. What, according to judges, are the practical differences?

A nonjury or bench trial differs in several significant respects from trial by jury. It calls for different techniques by both counsel and the judge. All of these differences, of course, spring from the single essential variant: In a bench trial, the judge decides not only the legal, but also the factual issues of the case.

Many judges will tell you that the right to trial by jury should be seriously considered because they think the least reliable of fact-finders is often the callous and cynical bench-trial judge. He thinks he has heard the same case a thousand times, and often his most urgent desire is to get the trial over with. The typical juror, on the other hand, approaches each case with freshness and a dedication to accomplish justice.


The Key Differences

Who decides the facts will have a definite influence on your preparation for trial. Take expert witnesses, for instance. Experts who are able to charm a jury may be less effective in a bench trial than those with impressive professional credentials but less courtroom sophistication.

When the court decides the facts, an opening trial brief may be more important than it is in a trial by jury. Such a brief in a jury trial is usually confined to an analysis of the legal issues likely to arise during the trial. But in a bench trial, a trial brief can be an important part of fact-oriented advocacy. A full and fair (but favorably stated) rendition of the factual background will be especially helpful if the trial judge is eager to move the case forward. And if you are interested in having the judge examine the exhibits as the case progresses rather than at the conclusion of the trial, you should furnish the court with an exhibit notebook that supplements the trial memoranda.

A judge sitting without a jury is more inclined to question the witnesses or suggest to counsel that certain witnesses be called. A judge is reluctant to ask questions in front of a jury for fear that the jury will construe the questioning as an indication of the court’s attitude toward an issue or a witness’s credibility. These constraints are removed in a bench trial. Counsel should not resent questioning by the court any more than appellate counsel should. The object of advocacy, after all, is not to present an oration, but to persuade the fact-finder.


Bench Trials from the Judge’s Perspective

From the judge’s view, how does a bench case differ from the jury trial? There is no question that the judge feels a greater responsibility when he is the fact-finder rather than when the jury resolves the disputed questions.

Bench trials may lack the drama of a jury proceeding, but they do afford some compensations to the judge. Foremost among these is greater flexibility in scheduling, which is especially important to a judge with a busy docket. Bench trials enable the court to deal with several matters simultaneously. In addition, the nonjury setting saves the time devoted to voir dire, and it naturally removes the risk of a hung jury.

During the course of a bench trial, evidentiary rulings have less finality. The court does not have to be concerned that the admission of evidence later deemed to have been inadmissible will prejudice the jury. In a bench trial, the judge is more likely to admit the questionable evidence. A final determination can be reached later, and the court in its findings of fact and conclusions of law can disclaim any reliance on evidence deemed inadmissible.

In a jury trial, the court’s role is more taxing on the judge. The judge’s work, for the most part, takes place during the trial itself and in the preparation and delivery of the court’s charge. When a jury verdict has been rendered, the court’s responsibilities are essentially concluded. In a nonjury proceeding, the opposite is true: It is the close of trial that marks the beginning of the court’s main task.


Settlement Talks in a Bench Trial

While a judge’s participation may advance the prospects for settlement, there are problems unique to the nonjury context. Judges must take special caution when participating in settlement discussions because of the possibility of later allegations that the judge acted less than impartially.

The candor of the parties may be inhibited if the judge, who may ultimately be called upon to find the facts, participates in settlement discussions.

Additionally, in the event the case proceeds to trial, there is the possibility that the judge will be influenced in his fact-finding by what has transpired in settlement discussions. Therefore, in settlement negotiations, many judges refer the matter to a magistrate judge or require the parties to enter into alternative dispute resolution.


Resolution of Bench Trials

When a bench trial is over, most judges find it preferable to decide the case as soon as possible because their memory fades. To allow this, the judge may advise counsel in a pre-trial conference to promptly submit any closing briefs or other matters at the conclusion of trial.


The Jury’s Level of Understanding

In a jury trial, it is imperative for lawyers to stay in touch with whether the jury is paying attention and whether you and your witnesses are being understood.

In particular, some lawyers carelessly let their experts lapse into technical jargon. If you let the witness drone on, the judge or jurors will soon lose interest if they cannot follow the testimony. This is the fault of lawyers who forget to instruct their witnesses to use language that jurors can understand. All witnesses are more effective if you urge them to employ common objects as points of comparison. A witness, for example, might describe a geographical location by referring to a well-known intersection.

Or, if you ask a witness to estimate size or distance, have him compare it to something that everyone is familiar with.

Lawyers often fail to use demonstrative evidence to help a witness make a memorable presentation. The proper use of visual aids can be equally important in bench trials, and most trial judges will greatly appreciate your efforts.

Convincing the Judge Cover


Click here to purchase Convincing the Judge

Did you find this article helpful? Do you think more information like this would help you? More information is available. This material is excerpted from Convincing the Judge, 2008, by Cecil C. Kuhne III, published by the American Bar Association General Practice, Solo and Small Firm Division and available to members of the GP/Solo Division for a discounted price through the link provided at the end of this article. Copyright © 2008 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. GP/Solo members can purchase this book at a discount.



LawPay Ad
Zola Suite
Thomson Reuters Legal Know-How Means Taking Leaps
  • About GPSolo eReport

  • Subscriptions

  • More Information

  • Contact Us

GPSolo -- Your Success, Our Mission




GPSolo Member Benefits

Connect with GPSolo