Brad Bradshaw, Ph.D. 

There has been a lot of debate (resulting in minimal agreement) regarding the advantages and disadvantages of choosing a bench trial versus a jury trial. What should you take into consideration before selecting your trier of fact?

Logistically, bench trials have a distinct advantage. For example, bench trials tend to move faster than jury trials. Obviously there is no voir dire but, even beyond that, a judge is likely to grasp concepts quicker than a jury would. Further, in pretrial conferences you may learn specifically what the judge will base her decision on, allowing you to focus your arguments on those issues. With a jury, on the other hand, you cannot afford to leave anything out because seemingly minor issues may be critical in the eyes of the jury.

In addition to being faster, bench trials also allow for more flexibility. For a jury trial there are twelve additional schedules to take into consideration. More often than not, at least one of those twelve jurors will need to pickup the kids from childcare by 6:00. If a witness’s testimony will make the juror late, the judge will probably stop for the day and instruct the witness to come back the next morning. With a bench trial the judge will be more likely to push through to finish the witness.

Generally speaking, bench trials are more interactive than jury trials. Some courts allow jurors to submit questions during trial. The purpose is to help clarify information for the jury. As a side benefit their questions give you an idea of what the jury thinks is important. However, only a fraction of courts currently allow jurors to ask questions during trial. During a bench trial, however, almost all judges will ask questions to you and your witnesses. Further, with a bench trial you may even receive overt feedback from the judge as the trial is progressing. That is, if you are spending too much time on an issue she is more likely to tell you to move along during a bench trial, as compared to a jury trial. Receiving feedback from the ultimate decision-maker is very helpful (assuming you heed her advice).

Another advantage with a judge is your ability to learn about her before trial so you can tailor your argument accordingly. For example, knowing a little about a judge’s interests and hobbies can help you develop useful analogies. By looking into some of the judge’s rulings (especially for similar cases) you can determine the extent to which she relies on the opinions of the higher courts. You can also read articles she has written and try to get a feel for where she stands on various social issues. With a jury trial you might know general information about the people in the community but you will not be able to get as much specific information about each juror prior to developing your strategy and writing the opening statement. Hopefully you will learn a lot about your jurors during voir dire but by then, presumably, you have finished preparing for trial. The more you know about your audience in advance the more you will be able to tailor your arguments accordingly.

Obviously, judges understand the law and are therefore less likely to make a decision that results in unintended consequences. For example, in a state that recognizes the pure contributory negligence rule the jury might assign a symbolic one percent fault to the plaintiff, not realizing that their decision will prevent the plaintiff from collecting anything from the defendant. Or in a modified comparative fault state with a 50% bar, the jury is not likely to understand the difference between assigning 49% fault to the plaintiff versus assigning 50% fault to the plaintiff. They will be very disappointed when they find out that they sent the plaintiff home empty handed when they thought their decision was fair for both sides.

A similar problem is when you have a strong case because an unintuitive law is in your favor but the jury will not know about the law until hearing the judge’s instructions after all the evidence has been presented. For example, in New York the general contractor of a construction site is held strictly liable for anyone working at elevated heights (e.g., ladders, scaffolding). However, since the jury does not know about the general contractor’s responsibility they will spend the entire trial focusing on the behavior of the injured worker, ultimately concluding that the worker is more responsible for his own injuries than anyone else. At that point they may have already rejected (and subsequently forgot) information favoring the plaintiff. When they learn that they must find for the plaintiff, after developing strong feelings otherwise, they may award an artificially low amount of money to the injured worker because they began discounting the plaintiff’s favorable evidence half way through the trial. Since the judge knows the standard while the evidence is presented she is able to view the evidence with the appropriate lens.

So what are the advantages to a jury trial? For starters, a decision reached by a group is more predictable than a decision reached by an individual because deliberations are an effective method to clear up confusion. If you present the case to a jury and one person does not “get it,” the other jurors will bring him up to speed. However, if you present the case to a judge and she doesn’t get it, you have a serious problem.

With regard to damages, jurors, understandably, have no idea how to put a price on non-economic damages. Therefore awards can be highly variable and more difficult to predict than the verdict. This is especially true for punitive damages. Jurors react more harshly to what they believe to be a gross violation of societal norms and are therefore more likely to award punitive damages than are judges. Judges, on the other hand, have been exposed to similar cases and know what a reasonable award would be for the plaintiff’s injuries and whether or not punitive damages are appropriate. Further, judges are more accustomed to dealing with large numbers. A verdict of a million dollars sounds much larger to a juror than it does to a judge. All that said, if there were a possibility for an extremely large award from punitive damages the plaintiff would probably fair better with a jury trial. If punitive damages are not a factor but other non-economic damages are in play, the plaintiff may come out ahead with a bench trial. If the only issue is economic damages, it probably does not matter.

If there is inadmissible evidence that is extremely damaging to your case, you may opt for a jury trial since the jurors will never hear about the inadmissible evidence, rather than the judge who probably made the ruling herself. Depending on the nature of the evidence, and despite her best intentions, the judge may not be able to completely disregard the inadmissible evidence. We humans are not as good at intentional forgetting as we would like to believe.

Of course, you should also consider the characteristics of juries in your area and their track record for your type of case. If jurors are known to be favorable towards your side of the argument in that jurisdiction, that could tip the scales in favor of a jury trial.

Finally, the interaction of the complexity of the evidence and the strength of your case should also be taken into consideration. If your case relies more on the interpretation of the evidence and less on the letter of the law, you might opt for a jury trial. If you have a strong case that is full of complex information, and winning the case hinges on your ability to explain it to the audience, you might do better with a judge instead of a jury. Since judges are prone to rely on the law more than jurors, a case with strong legal arguments but questionable facts might also do better with a bench trial.

In the grand scheme of things, there are more similarities between judges and juries than there are differences. Judges are obviously more educated and can digest more information but that does not mean you should just dump a bunch of facts on them. Judges use the story model of decision-making the same way jurors do. Although your themes may be different than those you would use for a jury, it would be a huge mistake to abandon the use of themes because it is “just a bench trial.” The same goes for visual aids. Juries benefit from visual aids, not because jurors are stupid, but because the information is complex and learning is easier when verbal information is complemented with visual information. Just because the judge has a higher IQ does not mean she would not benefit from the same visual aids. Judges are, after all, only human.