Better your chances at the bench.

Trial lawyers tend to believe that every case should go to a jury. Many of us abhor mandatory arbitration and hail the jury trial as the ultimate forum, where regular people can obtain justice against society's most powerful entities. We call the jury the "great equalizer," the "ultimate check and balance." And all this is true. Yet in some cases, justice may be better served by a bench trial.

Many of us assume that judges typically give out smaller awards than juries do, but research says otherwise. Studies conducted by the Bureau of Justice Statistics and the National Center for State Courts yielded surprising results.

One study looked at 10,275 state-court tort trials. In these, plaintiffs won 57 percent of the bench trials but only 48 percent of the jury trials. Punitive damages were awarded in 7.9 percent of bench trials but in only 2.5 percent of jury trials. (1)

In 1996, a Civil Justice Survey of State Courts looked at 15,638 cases from the 75 largest counties in the United States. The plaintiffs prevailed in 49 percent of the jury cases and in 62 percent of bench trials. (2) Both studies showed higher median awards in bench trials.

Sometimes the choice between bench and jury is not yours. Suits filed under the Federal Tort Claims Act, for instance, mandate a bench trial. So do those seeking equitable relief. However, if a claim for monetary damages is included in a cause of action, that portion can be heard in front of a jury. Bench trials are also required for certain maritime causes of action.

When you do have a choice, several factors will influence your decision. There are some obvious advantages to a bench trial. Typically, a judge can try a case in less time, a savings of both time and money. Costs for demonstrative exhibits might be less extravagant. You can also eliminate jury fees and other expenses associated with a jury trial.

Other benefits might be less obvious, but still worth considering. Take the following into account when choosing whether to go with a bench or jury trial.

Favorable judges, unfavorable juries. Some jurisdictions have a well-qualified, experienced bench where most of the judges are fair and impartial. Certain jurisdictions are known as "good plaintiff jurisdictions," and others are more conservative. In many of those, your client might be better served by waiving a jury trial and demanding a bench trial. Opposing counsel will usually reserve the right to a jury trial--but not always.

Complex issues. Because a judge is typically an experienced jurist, persuading the trier of fact might be simpler in a bench trial. In cases where the law should dictate a plaintiff verdict, defense verdicts might be the result of juror confusion or failure to follow the law. Judges are more likely to follow the law in these situations.

Invisible injuries. As most trial lawyers know, juries have become more skeptical of so-called invisible injuries. As a result, in an auto case involving a rear-end collision and a plaintiff who claims whiplash and other connective-tissue injuries, a bench trial is more likely to result in a plaintiff verdict. Again, a judge is more likely than a jury is to follow the law if there is any evidence of injury.

Additionally, many recent jury verdicts have been inconsistent. There have been a number of exceptionally small verdicts reflecting current societal skepticism regarding frivolous cases. In other words, some juries have a real suspicion of plaintiffs who allege connective-tissue injuries.

But there are notable exceptions in which juries have rendered significant awards in connective-tissue cases. Where the client is credible, the jurors are more likely to believe that the person has really suffered, and they are more willing to award a significant sum. Carefully analyze each case. Where you have the potential to "hit a home run"--you have a sympathetic plaintiff and the probability of a higher award--you are probably better off with a jury.

Alternative to arbitration. Predispute binding arbitration, as a condition of employment and in many other contractual settings, is taking away plaintiffs' right to a jury trial. The playing field is not level in these arbitrations, which tilt in favor of employers. Nonetheless, it makes sense to at least propose a bench trial rather than an arbitration. A bench trial will produce formal findings of fact, and you will have the right to appeal.

Large cases. In certain very large cases, you and your opponent might want to agree to a bench trial. I recently served as counsel in a case that involved multiple plaintiffs, three separate plaintiff firms, limited insurance coverage, and few assets. The parties' attorneys agreed to select a judge respected by both sides to try all the damages cases (we were allowed to choose the judge in this case). Separate awards were made for each of the plaintiffs, and the insurance proceeds and assets were split pro rata among the various claimants.

A trim before a retired judge might be appropriate in many cases, if you can get the other side to agree, contingent on their satisfaction with the particular judge. This can increase the overall expense compared to that for a jury trial, but the increase may be offset by the savings of time and some of the other costs of a jury trial. You also save money by having a firm trial date.

Because a right to a jury trial is fundamental, it is extremely important to discuss any waiver of this right in detail with your client. Confirm this discussion and your client's decision in writing.

When do you not want a bench trial?

None of this, of course, means that a bench trial is always preferable. Many cases will fare better if they are brought before a jury rather than a judge. Keep the following factors in mind when making this decision.

Favorable jury pool, unpredictable judges. You may be in a location known for liberal juries and conservative judges. You may be in an area where the bench is a real "mixed bag," so you don't know what type of judge will hear your case. Or the judges in your jurisidiction might be generally inexperienced, or at least inexperienced in civil matters.

Because the judge will be the trier of fact and will also perform all of the other judicial functions required, including deciding the law in the case, having a judge with little civil experience can lead to results that are even more unpredictable than they would be with a jury trial. Since you will have only one peremptory challenge--one chance to dismiss the judge without cause--be careful in a jurisdiction where your chances of ending up with an acceptable judge are minimal.

Low-risk, high-potential cases. The conventional wisdom--that a jury is likely to award more damages than a judge when you have a particularly credible and likeable client, sympathetic facts, aggravated liability, the opportunity for an award of punitive damages, and a case with substantial emotional appeal--is probably still true. In several of my cases, I am certain, the result would have been different had I tried them to the court rather than to a jury. Carefully analyze liability, causation, credibility, and damages issues in order to make this determination.

Presenting evidence to a judge

Preparation. Some might think that preparing for a bench trial requires less work than for a jury trial. It is true that you don't need to prepare for voir dire in a bench trial, but you will need to spend at least as much time preparing for the trial itself. As Mark Twain has been quoted, "Forgive me for writing such a long letter--I didn't have time to write a short one." The same principle applies here: Judges may be impatient if you take your time explaining foundational matters to them. Your presentation needs to be exceptionally tight, logical, and concise. Paring the case down to its key elements takes a great deal of hard work, but it will make a big difference in your chances of success with a judge.

The trial brief. The trial brief is far more important in a bench trial than in a jury trial. You might begin preparing a brief a few weeks before a jury trial, but a brief for a bench trial demands much more effort. A good brief should become the road map, as well as a working tool, for the judge. It should not only thoroughly treat all the applicable law, but also persuade the judge, using the facts and proof you plan to present. It should cite to appropriate authorities and all the other documents you will use at trial.

It might help to place all the applicable exhibits, highlighted if necessary, in an indexed binder. You will be allowed to refer to the contents of the binder during opening statement, as well as throughout trial and final argument, and it should become the tool the court refers to throughout the trial. As your first real opportunity to persuade the court, this is one you should not squander.

Opening statement. Some lawyers assume that presentations to the court must be more stoic and dry than those addressed to a jury. Not necessarily. You still need to keep the court's attention, entertain, and be a passionate and zealous advocate. But judges are human, too, and they are subject to persuasion. Of course, there are differences in how you persuade a "jury" of one very experienced jurist as opposed to a jury of 12 laypeople.

Again, be concise, logical, and organized. The court is less likely to tolerate a rambling, storytelling approach. Be persuasive by keeping to the point and presenting your evidence in a powerful, compelling way.

Presentation, Incorporate into your opening statement exhibits and documents you are likely to present at trial. You might prepare demonstrative evidence for a judge differently from the way you would for a jury. For instance, electronically scanning documents and photos into a computer and presenting them through PowerPoint might be appropriate. This differs from a jury trial, in which hard-copy blowups are generally preferable. In a bench trial, smaller or slightly less "slick" blowups are also effective.

You are more likely to be able to use presentation software such as PowerPoint in a bench trial. In jury trials, many judges are leery of letting jurors see any exhibits during opening if opposing counsel objects. But in a bench trial, it is difficult for opposing counsel to object because the judge probably needs to look at the presentation in order to rule on it. Presentation technology can help the judge follow your argument, and it shows that you are organized and prepared. A smooth presentation can subtly increase the emotional impact of your case, even on a jaded trier of fact.

Attitude. You can use certain shortcuts in a bench trial, but that doesn't mean you can abandon all the rules. The judge will not appreciate it if you take advantage, so don't be argumentative during opening, just be persuasive. Try not to invite objection from opposing counsel.

The same is true if you are using a Presentation. Don't take unfair advantage or hit below the belt. Play fairly and keep the court's respect.

Credibility. Credibility is paramount in any trial. Check all your case citations so that you cannot be accused of inaccuracy. The same is true for any promises you make during your opening. Be cautious and conservative, as a judge is unlikely to tolerate any failure of proof during trial.

Persuasiveness. Some lawyers think pandering to emotion works. This is a mistake in a jury trial, but it is particularly dangerous in a court trial. If the judge suspects that you are trying to unfairly influence him or her, pandering can definitely work against you. You can be a passionate, persuasive, and zealous advocate without being patronizing. The same evidence can be either tiresome and boring or powerful and persuasive, depending on how well it is presented.

Tailor your presentation so that it is appropriate, for an experienced, knowledgeable trier of fact. Judges will forgive what they see as zealous advocacy. They are not likely to forgive what they perceive as ploys to elicit sympathy or to prejudice the court.

Protecting your record. It is easy to let down your guard in a bench trial because of the unusual way objections are handled and the shortcuts you can sometimes take on foundational matters. The court may find it unnecessary to lay a foundation. Sometimes, the judge takes the admissibility of a piece of evidence under submission for a later ruling that never comes. Make sure all your evidence has been properly admitted. Remember that ultimately, the entire record maybe before the court of appeal, so lay an appropriate foundation and preserve objections.

You may even find yourself in the odd situation of asking the court to "unring" its own bell. For example:

   Defense counsel (cross-examining the
   plaintiff in a personal injury case): Mr.
   Jones, is it true that a month before this auto
   accident, you beat your wife?

   Plaintiff counsel: Objection. Assumes facts
   not in evidence. Irrelevant!

   The court: Sustained. I will instruct myself
   to disregard counsel's comment with regard
   to this troublesome evidence.

Or perhaps an even more unusual situation occurs: The judge asks questions, and you end up in the delicate position of having to object to them to protect the record.

For example, during direct examination of the plaintiff:

   The court: So, Mr. Jones, when was the last
   time you beat your wife?

   Plaintiff's counsel: Objection. With all due
   respect to this esteemed court, that is argumentative,
   your honor.

   The court: Sustained! One more outburst
   like that and I'll hold myself in contempt!

OK, that exchange is not likely, but it is important that you zealously protect your record in the event of an appeal, even though doing so may make you uncomfortable.

Closing argument. After a concise presentation on liability, causation, and the law, the closing is your opportunity to empower the judge to render a just award.

Unlike in a jury trial, introducing evidence of awards or settlements in similar cases may be appropriate. Give the judge all the information he or she will need to craft a just and appropriate verdict for your client.

Studies have revealed that, contrary to most trial lawyers' preference for juries, sometimes a bench trial is not a bad thing. Once you have decided that a bench trial is right for your case, bolster your chance of success by tailoring your presentation to best suit the judge who will hear and decide the case.

Notes

(1.) BUREAU OF JUSTICE STATISTICS & NAT'L CTR. FOR STATE CTS., CIVIL JUSTICE SURVEY OF STATE CTS. 1996 (1997).

(2.) BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CIVIL JUSTICE STATISTICS 1996 (1997), available at www.ojp.usdoj. gov/bjs/civil.htm (last visited Mar. 30, 2094).

ROBERT E. CARTWRIGHT JR. is a partner with The Cartwright Law Firm in San Francisco.