Bench trials comprise a significant percentage of class-action trials. And class-action defense lawyers are often conflicted about whether it’s better to try a case in front of a jury or a judge. A judge may be better equipped to sort through some of the more complex issues in the case, but sometimes complexity can favor the defense in front of a jury. Moreover, many defense lawyers consider a judge who has certified a class to have already stated some opinion on how the case should proceed.
So what do lawyers need to be aware of when trying a class trial to a judge? According to an article by Paul Holland in NYU’s Clinical Law Review ("Sharing Stories: Narrative Lawyering in Bench Trials"), the most important thing to remember is that judges like stories just as much as jurors do. More importantly, Holland identifies at least three places where bench trials significantly differ from jury trials, each of which has implications for a class trial:
- Opening statements carry greater risk than in jury trials. "Jurors are generally trial novices, eagerly awaiting the entertaining lawyer storytellling characteristics of an effective opening. In contrast, judges are likely to see the lawyers’ openings, however diverting, as the only thing standing between them and the evidence upon which their decisions should rest. Judges are unlikely to interrupt an opening statement, but may quickly dismiss lawyers they believe to be off-track." This factor may play to a class-action defendant’s strengths; it blunts, at least in part, the rhetorical effectiveness of the David v. Goliath story many class plaintiffs like to tell.
- Framing decisions as easy may backfire. "When decisions appear to be easy, they will be made quickly, often by automatic thinking and shortcuts." And judges’ automatic thinking will include the various patterns they recognize from years of watching lawyers maneuver against each other in court. For a class action, this means that the defense should may not need to worry quite as much about the delicate balance of making issues simple enough for a jury to grasp, while still preserving the complexities of a classwide trial for appeal.
- Judges often give more feedback than juries. Since the judge is both referee and factfinder, nothing prevents her from asking questions during the course of the trial, or signaling that she is more interested in some kinds of evidence than others. (In fact, for a judge with a backlog of cases, cutting straight to the relevant factual questions is probably the most responsible thing she could do.) Of course, in focusing in on what she considers relevant, the judge gives the lawyers valuable feedback on what she thinks of the case, allowing for midcourse corrections. In a class trial, that updating can prove particularly helpful for balancing the risks of an adverse verdict against the costs of a classwide settlement.
Given the wide variation in judicial temperament, the single most important factor in deciding whether to pursue a bench trial is still the specific judge who would be trying the case. But knowing the risks specific to a bench trial can help a defense lawyer make the best decision possible for his client.