Published in Verdict, Volume 25, Number 1, Winter 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any 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. Special Considerations in Bench Trials By David E. Ross

ith all of the attention that where cases remain with one judge from unique requirements for bench trials. jury trials receive, it is easy filing through trial, pretrial proceedings Lawyers who have tried only jury Wto overlook the importance present a valuable opportunity to shape trials may be surprised to learn that of bench trials. According to a recent his or her views well before the first wit- there are special rules governing bench study, there are more bench trials each ness is called. trials—a surprise that would be particu- year (both civil and criminal) than jury While judges know that these con- larly problematic if it came on the eve of trials. See, e.g., Brian J. Ostrom, Shauna siderations are supposed to be irrele- trial. Most notably, Federal Rule of Civil M. Strickland, and Paula L. Hannaford- vant to the merits, as human beings it Procedure 52(a)(1) requires that “[i]n an Agor, “Examining Trial Trends in State is difficult to ignore them altogether. action tried on the facts without a jury Courts: 1976–2002,” Journal of Empirical Strained arguments on a motion to dis- or with an advisory jury, the court must Legal Studies 1, no. 3 (November 2004): miss or summary judgment may under- find the facts specially and state its con- 755–782 at Figure 2 (for criminal trials); mine a party’s later attempt to claim that clusions of law separately.” id. at figure 10 (for civil trials). it acted reasonably during the events at Even when not required by court Indeed, in each of the 27 years stud- issue. Similarly, a party’s refusing to pro- rules, proposed findings of fact and con- ied, there were between two and three- duce clearly relevant documents could clusions of law serve two important pur- and-a-half times as many civil bench lead a judge to wonder what it is hid- poses. First, if prepared properly, they trials as civil jury trials. The importance ing—to say nothing of its credibility. serve as a road map for the court. The of bench trials becomes even clearer Lawyers also must therefore be mind- findings of fact tell a story, building to when you consider that the study did ful of how their pretrial positions will high points that coincide with the legal not include arbitrations or administra- be received by the court and how they elements necessary for the court to rule tive proceedings, which share many of relate to their overall case themes. That’s in your favor. Second, much like jury the same characteristics as bench trials. not to say you should shy away from instructions, proposed findings of fact Lawyers trying bench trials utilize aggressive positions. But the collat- and conclusions of law can be an invalu- the same fundamental tools for the same eral risks associated with any position able aid for both discovery and trial. purposes as lawyers trying jury trials. must be fully understood and weighed Preparing these documents forces you For this reason, many of the skills and accordingly. to think carefully about what you must lessons learned trying cases before a In that same vein, lawyers should prove and how to do so. As you enter jury transfer easily to bench trials. At the seize upon opportunities that exist when discovery, having a clear picture of what same time, the unique aspects of bench litigating against an unreasonable party. you want (and need) to prove will help trials present additional considerations Rather than grow frustrated, consider ensure that you obtain the necessary evi- and traps for trial lawyers. This article unreasonable positions as an opportu- dence. And as you move toward trial, discusses some of the considerations and nity to force the opposing party to spend an internal annotated version will assist opportunities that may exist and how some of its credibility with the court. In greatly in determining the most effective to take advantage of them in your next doing so, remember that almost every means for presenting that evidence. bench trial. pretrial filing presents an opportunity to It is therefore a mistake to wait until further educate the judge about the mer- the eve of trial to draft proposed find- Look for Opportunities to its of the case. When briefing a motion ings of fact and conclusions of law. It Pre-Try Your Case to compel, for example, take time to is similarly a mistake to relegate this One primary difference between bench explain what the case is about, your responsibility to a young, inexperienced trials and jury trials is that, in a bench arguments on the merits, and how the lawyer. While it will, of course, be nec- trial, opportunities exist to begin shap- requested evidence will bolster those essary to revise them as you approach ing the fact finder’s view of the case long arguments. Not only will this make your trial, the proposed findings of fact and before the trial begins. motion more effective, but it will also conclusions of law require early and Except in rare cases, juries never learn familiarize the judge with your theory frequent attention from more senior about the parties’ pretrial actions and of the case. members of the trial team. contentions. Jurors meet the lawyers and parties at voir dire. They will never Identify Special Rules Consider the Unique Roles of know about any “creative” arguments a Governing Bench Trials Pretrial Pleadings lawyer made in trying to dismiss a well- Another important early consideration Because they speak directly to the trier pled claim or how reasonable the parties in non-jury cases is whether the court of fact, pretrial briefs are generally more were in discovery. But in jurisdictions rules or judge’s procedures impose any important in bench trials than in jury tri-

American Bar Association 1 Winter 2011 Published in Verdict, Volume 25, Number 1, Winter 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any 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. als. A well-written pretrial brief offers to considering how, if at all, your pre- ifications, the non-sponsoring party is an opportunity to educate and persuade sentation will change because the case is well suited to forgo objecting to such a the fact finder that does not exist in jury being tried to a judge. streamlined presentation. trials. And pretrial briefs are especially There are two primary factors behind Another potential means for stream- important when, as is sometimes the most changes that lawyers make when lining your presentation is through the case in a bench trial, the judge does not trying a bench trial. First, the judge use of written direct examinations. permit an opening statement. Pretrial brings a level of sophistication and While many trial lawyers may recoil at briefs permit you to pre-try your case experience beyond that of the typical losing the opportunity to elicit a com- with detailed discussions of the doc- juror. Substantively, this sophistication pelling narrative from a good witness, umentary evidence and expected tes- may permit you to move quickly into what better way to differentiate your timony, the governing law, and the the more complex aspects of the case. good witnesses from the other party’s interaction of the two. In the Delaware Procedurally, the judge may be willing witnesses than by focusing upon cross- Court of Chancery, which, as a court of (and indeed, may expect you) to abbre- examination? And because it will equity, tries almost exclusively non-jury viate—or even avoid altogether—some shorten the time necessary to try a case, cases, it is not unusual for pretrial briefs of the detailed procedures that must be this can be particularly useful when you in large cases to be 50 pages or more. are having trouble finding time on the Motions in limine, in contrast, are far court’s calendar or when it is impor- less important. In fact, these motions tant to get a time-sensitive matter to rarely make practical sense, because trial quickly. they require the fact finder to review It is essential, of course, to consult the very evidence you are seeking to with the court about any nontraditional exclude. Even when a case is assigned Leave the pre-trial conference ideas for presenting your case. Provided to a different judge for pretrial proceed- with a clear understanding of how the it occurs sufficiently in advance of the ings, because our system presumes that court expects the case to be presented. trial to permit you to make any neces- the risk of evidence improperly influ- sary changes, the pretrial conference is a encing a judge is minimal, a busy court logical opportunity to present your pro- may question why it is being burdened posals for simplifying the presentation by an unnecessary motion. of your case. One potential exception involves It also is important to leave the pre- challenges to expert witness testimony. trial conference with a clear understand- While even these motions are rare in followed when trying a case to a jury. ing of how the court expects the case to bench trials, they offer an opportunity With a busy docket and heavy caseload, be presented. For example, will there be to begin educating the court regard- a judge may become frustrated with a an opening statement? While you do not ing an opposing expert witness’s lack lawyer who, by trying a bench trial in want to lose valuable time before trial of relevant expertise or faulty analysis. the same way that he would try a jury preparing one when the court is unwill- They can therefore be viewed as analo- trial, unnecessarily slows down the ing to hear it, it is equally problematic gous to taking an expert witness on voir presentation of the case. if you fail to prepare one because you dire after the sponsoring lawyer has One common means for streamlin- incorrectly assume that this judge will attempted to establish his or her qual- ing the presentation of evidence involves not permit it. Be sure that you address ifications. As with expert witness voir qualifying expert witnesses. Even if these and any other questions that you dire, however, to be most effective, such they are not familiar with a particular have to minimize the risk of surprises motions should be used sparingly. expert witness or the relevant substan- during trial. tive area, experienced trial judges under- The difference in fact finders may Tailor the Presentation of Your stand what an expert is and what makes affect not only how you examine wit- Case a given witness an expert. Unless the nesses but also the order in which you Often, but not always, you may present witness has a particular subspecialty or call them. While the principles of pri- your case to a judge differently than you aspect of his or her education or expe- macy and recency are as important in would to a jury. Whether any changes rience that makes him or her uniquely bench trials as they are in jury trials, the make sense and, if so, which ones, qualified, in most cases, you can just court’s familiarity with the case may depends upon several factors (includ- as easily establish a witness’s expertise afford you opportunities that would not ing the nature of the case, the evidence, by providing the court with a copy of exist when trying a case to a jury. This and the judge). While it is impossible to the witness’s current curriculum vitae is particularly true when your primary identify in this article all of the opportu- and moving directly into the substance witness is an adverse witness. nities that may exist, you should dedi- of your examination. Unless there is a cate time during your trial preparation bona fide issue as to the witness’s qual- Continued on page 23

Verdict 2 Section of Litigation Published in Verdict, Volume 25, Number 1, Winter 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any 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.

Special Considerations in Bench Trials would have been a senior employee of While you cannot shy away from objec- Continued from page 14 our client who could explain the indus- tions that are necessary to preserve any try, the competition between the former substantive issues or significant eviden- This issue arose in a case in which and new employers, the trade secrets to tiary issue for appeal, the court will not we sought to enjoin a client’s former which the former employee had access, have the same patience for objections employee from assuming a senior posi- and the threats posed by his change of than it would have in a jury trial. Rather tion with a direct competitor in viola- employment. But because we addressed than dealing with serial objections to tion of his noncompetition agreement. each of these in our pretrial brief, we form and other mundane matters, the The defense rested primarily upon two were comfortable that the court had a court will prefer to admit the evidence claims by the former employee. First, he sufficient background for us to examine and give it the weight that it deserves. claimed that he was not aware of the rel- the former employee effectively at the You will therefore be well-served to be evant provisions and did not agree to outset of our presentation. judicious in your use of objections. be bound by them. Second, although he The examination went even better As with jury trials, there are no hard- admitted to having access to our client’s than expected. Blinded by his confronta- and-fast rules when trying bench trials. sensitive trade secrets, the defendant tional mindset, the defendant refused to Every case presents unique challenges promised to protect those trade secrets in admit basic background facts reflected and opportunities. But it is a mistake to his new position. in his own emails. He was quickly view a bench trial as just another trial or While we appreciated the impor- impeached with his writings and never (even worse) not a “real” trial because tance of establishing all of the elements recovered. In less than an hour, his cred- there is no jury. Bench trials require care- of our case, it quickly became clear ibility was destroyed, and the case was ful consideration of the unique chal- that our ability to obtain the injunction effectively over. Not surprisingly, the lenges and opportunities that can have hinged upon the defendant’s credibility. opinion granting the injunction made a significant effect upon who ultimately Confident that we had ample grounds to clear that concerns about the defendant’s prevails. n call that into question, we decided to call credibility factored significantly into the the defendant as our first witness. court’s decision. David E. Ross is a partner at Connolly In a jury trial, this would have been In addition to affecting your affirma- Bove Lodge & Hutz LLP, in Wilmington, risky, since the jury would have had no tive case, the difference in fact finders Delaware. He can be reached at dross@ context to understand his testimony. may also affect how you respond to the cblh.com. Before a jury, the first witness likely opposing party’s presentation of its case.

American Bar Association 3 Winter 2011