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The 7th Amendment guarantees the right to a jury trial in most cases (exceptions for maritime cases, claims that are solely equitable, not legal). However, Rule 38 requires that a party “demand” a jury trial – it is not granted by default. The written demand typically accompanies the complaint or answer (though it can be filed within 14 days after service of the last pleading “directed to the issue” for which a jury trial is sought).
The demand can be for “all issues so triable” or for a subset of the issues presented. If one party demands only a subset of issues be tried by jury, the other party can demand a jury trial on any or all of the remaining issues. If no demand is filed from the outset, the party is deemed to have waived the right to a jury trial. However, a party may move for a jury trial at a later date, but the court has no obligation to grant such motion. If the parties seek to convert a jury trial to a bench trial, the parties simply need to stipulate to a bench trial; no motion is required.
Strategy point: if you can’t decide whether a jury trial is to your advantage at the commencement of litigation, consider demanding a jury trial and then offering to stipulate to a bench trial later. This is far easier than waiving your right to a jury trial and filing a motion with the court later on.
Although a common perception is that bench (non-jury) trials are speedier and more efficient, this is not always the case. In fact, jury trials may result in lower costs, faster verdicts, and a common-sense result.
Both bench trials and jury trials have the potential to be incredibly expensive, especially if you are litigating against an especially litigious party. That said, jury trials may be the most cost-effective option because they typically do not require as many pretrial submissions or proposed conclusions and findings of fact. Depending on the complexity of the case, a judge in a bench- trial case may request hundreds of pretrial submissions and proposals.
Conventional wisdom would posit that a single decision-maker will work faster than many, but in practice, jurors tend to turn out verdicts much faster than judges. After a bench trial, the parties will gather the evidence and arguments presented, package them as post-trial submissions, and present them to the judge. The judge, in turn, reviews the submissions and writes findings of fact and conclusions of law, often taking weeks. Whereas, a jury trial will often result in much swifter conclusions because the jury rarely deliberates longer than a few hours or days before producing a verdict.
It is a common misbelief that jurors, unlike professional judges, lack the specialized knowledge and expertise to comprehend complex cases and technical subject matter. However, Federal jurors often possess advanced degrees, varied life experience, and technical know-how that can be a real advantage to a party presenting difficult claims. The layperson perspective can result in commonsense solutions that attorneys and judges neglect.
Whether it’s a jury trial or bench trial, motions for summary judgment are available as a means to dispose of the case when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rules of Civil Procedure Rule 56. What does this mean? Summary judgment is mechanism for deciding the case without the expense, effort, and time of going through a trial. But it is only appropriate when the material facts of the case are not disputed by the parties and the outcome is more-or-less obvious. The outcome would obvious when no reasonable factfinder could disagree with the movant regarding facts necessary to prove (or disprove) a claim.
For example, a plaintiff might move for summary judgment when it claims the defendant failed to perform a contractual obligation owed to the plaintiff, and (1) the parties do not dispute there was a valid and enforceable contract, (2) the parties do not dispute that the defendant did not perform, (3) the parties do not dispute that plaintiff held up its end of the bargain and otherwise fulfilled all conditions precedent, and (4) the parties do not dispute that plaintiff was harmed in some meaningful way. All that is left is for the judge to determine what legal obligation was owed – no material facts are in genuine dispute, just the legal question of contract interpretation. Contract interpretation is a role for judges, not jurors. Therefore, summary judgment would likely be appropriate, and there is no need for trial.
A motion in limine is a motion brought by either party to exclude, limit, or include evidence before it is offered at trial. These motions are often used tactically by attorneys. These motions are particularly effective for judges in their role as gatekeeper. They ensure that a judge may rule on certain issues before the come up in trial to avoid unnecessary delays during trial. There are a variety of reasons why an attorney may seek to preclude or include evidence, including for hearsay reasons. A motion in limine is also used when a party anticipates that the evidence may be objected to for several reasons during trial and want to ensure that the evidence will be allowed.
Besides addressing evidentiary concerns, motions in limine are also used to set limits on damages or remedies sought by the parties. In general, motions in limine are exceptional tools used for efficiency; however, some attorneys may abuse motions in limine to harass the other party.
Daubert motions, named after the case Daubert v. Merrill Dow Pharm., Inc., are common pretrial motions used to limit or exclude expert witness testimony that fails to meet certain evidentiary requirements, is not reliable or is not relevant. When these motions are used it is most often challenging the expert’s expertise (including qualifications), methodology, and conclusions. In jury trials, a judge typically decides on these issues prior to trial in an effort to narrow the issues addressed at trial.
Voir Dire is the process of questioning prospective jurors about a variety of topics in order to ascertain if the juror is biased for or against a party or otherwise unable to decide the case in impartial manner. In federal court, the magistrate or judge is conducts voir dire with the use of questionnaires produced by the parties. The questionnaires’ purpose is to help counsel determine potential disqualifying bias, but also to determine whether or not the potential juror is likely to favor their party.
In state courts, unlike in Federal court, the attorneys typically perform voir dire in person, while the potential jurors are seated in the courtroom. Besides the information received from the juror’s answers, the attorneys in Federal cases will often use online resources at trial to discover information about the jurors, such social-media postings. A newly relevant concern, counsel members sometimes ensure that any online research – particularly into social media – does not alert the potential juror.
Assuming (1) summary judgment does not dispose of the case, (2) the parties cannot reach a negotiated settlement, and (3) we’ve jumped through the hoops of pre-trial motions and other preliminary matters, we arrive at trial – the made-for-TV moment that lawyers either love or fear (or for some confused types, both). The following details some of the key steps in the Federal jury trial, beginning with jury instructions and finishing up with appellate review of jury verdicts.
Before trial, the parties should exchange proposed jury instructions and verdict forms. These instructions and forms pertain to the substantive issues of the case – what elements must be proven to find a party liable, how do you measure damages, etc. – rather than conduct of jurors during the trial. Governed by Rule 51 of the Federal Rules of Civil Procedure, these instructions are usually based on model or pattern versions that are promulgated by a committee for the jurisdiction. For example, in the Northern District of California, pattern jury instructions can be found online1, promulgated by the Ninth Circuit Jury Instructions Committee.
The parties may submit proposed instructions that regard non-substantive matters, but many judges issue standard preliminary instructions, separate from those submitted by the parties. Often those instructions address fundamental matters like: juror conduct generally (professionalism, dress, and demeanor; taking breaks; meals; medical issues; etc.), note-taking in the courtroom, limiting or banning the use of social-media during trial, banning independent investigation or research into the case via news or conversations with non-jurors, avoiding prejudice and keeping an open mind until all evidence is presented, how to communicate with the judge, and the meaning of common terms like “direct” or “circumstantial,” as well as how to view objections from counsel.
The parties will stipulate to, or the court will order, the final instructions or “jury charges.” These charges set forth the legal standards for the case, which often include: the necessary elements of liability and remedy, how to view evidence, evidence that the jury cannot consider, and legal definitions, among other things. The jury must apply the law as described in the charges to the jurors’ factual findings. As an example, below is a pattern charge from California for defining a Disability within the context of the Americans with Disabilities Act (ADA):
The plaintiff claims that [his] [her] disability was the reason for the defendant’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] [him] [her]. To succeed on this claim the plaintiff has the burden of proving the following by a preponderance of the evidence:
1. the plaintiff has a physical or mental impairment;
2. such physical or mental impairment substantially limited one or more major life activities;
3. the plaintiff was a qualified individual as that term is later defined in these instructions; and
1. Ninth Circuit Jury Instructions Committee, Manual of Model Civil Jury Instructions,
(last accessed February 24, 2020).
4. the plaintiff was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] because of [his/her] physical or mental impairment.
If you find that the plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. Major life activities are the normal activities of living that a nondisabled person can do with little or no difficulty, such as [specify applicable major life activities]. United States Courts for the Ninth Circuit, Manual of Model Civil Jury Instructions, 12.1A ADA Employment Actions—Actual Disability—Elements, http://www3.ce9.uscourts.gov/jury-instructions/node/209 (last accessed on February 24, 2020). Note that in the above charge, various elements are left in brackets, where the parties will modify the charge in their respective proposed versions to best suit the facts of the case.
In a bench (non-jury) trial, most judges will dispense with opening statements and proceed directly to the presentation of evidence. This is because judges, unlike jurors, are already familiar with the case through the parties’ pre-trial submissions (the pleadings, motions for summary judgment, expert motions, discovery motions, etc.). However, in a jury trial, the opening statement is crucial. Apart from voir dire, which sometimes serves to orient jurors to the facts and issues of the case, the opening statement is the first opportunity for the jurors to hear the basis for the parties’ claims. The opening statement is a “roadmap” to guide the jury in evaluating the evidence that will be presented.
A good opening statement is clear and concise. Counsel should limit the opening statement to describing the evidence and testimony that will be presented and leave arguments as to the meaning of such evidence for closing (although, trial attorneys often joke that opening “statements” are really opening “arguments,” and that argument is permissible, if not encouraged, at all stages of trial). Often, counsel will repeat the phrase “the evidence will show” when outlining what he or she intends to prove during the trial. Counsel should describe the witnesses and testimony, giving the jurors an expectation about what they are about to hear.
In some cases, demonstrative exhibits (photos, drawings, diagrams, simulations, graphs, models, animations, etc.) can be extremely useful for guiding the jury in an opening statement (after all, a picture is worth a thousand words). But counsel should be careful to seek approval from the court ahead of time in order to avoid objections based on the potential for prejudice, factual inaccuracy, or the lack of scientific basis. For example, an overhead photo of an accident scene would be useful for designating the position of the drivers, but the photo must be accurate – taken near the time of the accident, with dimensions and distances preserved. Counsel could easily object on the basis that the photo does not accurately depict the scene. A powerful, interrupting objection can distract from the narrative and diminish an opening statement’s effectiveness and persuasive power.
Next, comes the meat of the trial – the presentation of evidence by the parties.
The primary source of evidence in most jury trials is witness testimony. Accordingly, the parties should prepare lists of witness that they intent to call ahead of trial. A witness list should include: the witness name, a description of the topics that the witness will discuss, an approximate length of the testimony in hours, and the order in which the witnesses will be called.
Any facts to which both parties agree may be presented to the jury in the form of a stipulation. Stipulations save time and can help the jury understand basic facts of the case. Therefore, courts frequently encourage stipulations whenever possible.
Sometimes parties cannot be available for trial (if, for example, a witness becomes ill during the pendency of the case, or the witness is abroad on military duty, etc.). In lieu of in-person testimony, previously-recorded deposition testimony can be read or played before the jury. The parties must exchange designations of excerpts of transcripts or audio/video to be presented ahead of time, so that parties have chance to object and so the court has time to rule on any objections outside the presence of the jury, which could lead to prejudice.
Exhibits, too, should be accounted for ahead of trial, so that the parties can raise objections and the court can rule on such objections outside the presence of the jury. Objections as to exhibits are raised at a pretrial conference or a hearing on motions in limine (discussed above). This saves the jury time and the risk of confusion. Often, courts will not permit exhibits not previously marked for admission, except for impeachment exhibits, which are used on cross-examination to contradict or call into question witness testimony.
As a practical matter, jury trials have some logistical considerations that otherwise do not affect bench (non-jury) trials.
First, jurors are people, and people need to take breaks. Accordingly, jury trials tend to move at a slower pace with regular bathroom breaks, lunch breaks, and breaks for the parties to argue legal or evidentiary issues outside the presence of the jury.
Second, jury trials need to accommodate people’s schedules, so they must be fairly regimented (9am to 5pm, with 30 minutes for lunch, for example) and limited to a set time (10 days precisely, for example). Whereas, bench (non-jury) trials can be more flexible, starting earlier or going later, skipping certain days of the week, depending on the judge’s preference and docket, as well as availability of witnesses.
Third, a bench (non-jury) trial permits the parties to argue evidentiary issues in the middle of questioning witnesses without fear of prejudicing jurors. This can save considerable time, not having the jury move back and forth between the breakroom to the courtroom whenever an evidentiary dispute arises.
The closing argument is probably the most recognizable part of a trial – think Atticus Finch in To Kill a Mockingbird. The closing argument should attempt to persuade the jury in piecing together the relevant facts and reaching a determination. The closing argument should tie back to the opening, or even back to voir dire, to fulfill counsel’s previous promises (remember, in the opening it’s “the evidence will show” – now, it’s “the evidence shows/has shown”).
A good closing argument will: (1) exclude reference to evidence not previously admitted, so as to avoid objections from opposing counsel that will interrupt flow and narrative (2) revive concrete facts and quote actual testimony offered during the trial, (3) avoid legal conclusions, as the court will instruct the jurors as regards the law to apply in the case, (4) engage the jury with compelling storytelling that appeals to the jury’s sense of right and wrong, and (5) take no more time than is necessary – it must be concise and direct, no meandering and no tangents.
A party can move for Judgment as a Matter of Law (JMOL) both before the jury reaches a verdict and after (called a renewed JMOL). The essence of the motion is a challenge to the sufficiency of the evidence presented: a movant asks the court to decide whether a reasonable jury could find in favor of the non-moving party. If the court decides that no reasonable jury could side with the non-movant, then the case is over under what is sometimes called a directed verdict.
Although rare, a party can also move for a new trial if certain conditions are present. Courts have ordered new trials when there was the improper striking of jurors, improper compromise verdicts, outside influence (such as investigation outside of the proceedings), inconsistent verdicts, or a verdict that is contrary to the weight of the evidence.
After trial, the prevailing party can request that the court order costs and fees. Costs are generally available to the prevailing party, but fees are only permitted by statute or if the parties previously agreed to an attorneys’ fees arrangement.
It is extremely rare for an appeals court to disturb a jury’s findings of fact – a jury’s factual findings receive great deference.