Bench trial best practices—including when to go with a jury

When facing the prospect of a trial, you might consider whether a bench trial might improve your chances of success, or at least simplify and speed up the trial. You could also avoid the risk of opposing counsel successfully portraying your client as a bad or evil person, and a jury then concluding that your client deserves punishment (never mind the law). Bench trials save time, as there is no jury to select or manage. It’s also easier to argue technical points of law, as your audience is a legal expert instead of 6 or 12 laypersons.

However, before agreeing to a bench trial, consider how it might affect your strategy regarding rules of evidence that are designed to filter out evidence that might prejudice a jury.

What if the judge is also serving as the jury/fact finder? Does it make any sense to argue that the judge should exclude certain evidence from a bench trial because its probative value is substantially outweighed by the danger of unfair prejudice? To rule on the motion, the judge will have to first see or hear the evidence, thus creating the risk of the prejudice the rules seek to prevent. Or, should a motion to impeach the credibility of a witness by bringing into evidence crimes the witness has committed provide a list of those crimes? One might feel in either instance that to make the argument is to release the genie from the bottle.

Judges I’ve spoken to expressed no concern about such motions, but it’s reasonable to suggest that the more potentially inflammatory and therefore prejudicial the evidence, the more difficult it might be for a judge to not be influenced or affected by it.

Finally, don’t assume that a jury will be more or less (to use a suddenly controversial word) “empathetic” toward your client. Your client may have faith in a jury of laypersons who (at least in the aggregate) are presumably “ordinary people,” able to see things from the client’s perspective. But you might want to explain to your client that a jury might in fact be less empathetic than a judge. Learn everything you can about the judge that would hear the bench trial.

If a bench trial does not seem like the obviously better choice, empanel a jury. At least that ensures that your client will know that the matter will be decided in the atmosphere of tradition and gravitas that only a jury trial can provide.

(photo: Steven Punter)

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