CBA Record January-February 2023

15Ways to Botch a Bench Trial

By Judge A. Benjamin Goldgar

L awyers take care with jury trials. Jurors are nearly always impression able lay people. Recognizing that, lawyers plan painstakingly for a jury trial. And at the trial itself, they bring all their professional skill to bear. Not so much with bench trials. The audience isn’t a lay person but a judge – another lawyer and someone familiar with the courtroom. No reason to tiptoe around a judge, many lawyers feel. No reason to worry about confusing or mis leading that grizzled veteran. And so, it often seems, no reason to treat bench trials with the same seriousness and care lawyers would lavish on a jury trial. After all, what could go wrong? The answer: plenty. Carelessness in bench trials is “a significant problem,” one judge told me. Below, then, are some of the many ways lawyers can botch a bench trial. (And lest you write these off as the gripes of one grumpy judge, thanks to the many other judges who contributed their own for this piece.)

Assume the judge knows the case This is one of the most common missteps and one of the worst. Because the judge has been hearing the case from the start, getting status reports, supervising discov ery, and ruling on motions, lawyers often assume the judge already knows what the case is about, and they try the case accordingly. Bad assumption. Judges have lots of cases and recall each one only vaguely (the “Lake Forest mansion case,” the “Dodge Challenger case”), if at all. Their trial prep aration may also be limited: some judges lack the time to do more than glance at the pleadings beforehand. But even when judges recall cases well and prepare exten sively for trial, they recognize that what they’ve seen and heard before trial isn’t evidence. So they engage in a little mental exercise. They consider each trial a new day. They wipe the mental slate clean and wait for you to write on it with your wit nesses and exhibits. When it comes to the trial, then, assume the judge knows noth

ing. Treat the judge the way you would a jury: ignorant of the facts. Present your evidence randomly This is another misstep that often (though not always) follows from the first. Because lawyers assume the judge knows the case, or maybe because the lawyers simply recognize that the judge is a judge, they decide that the order in which they call witnesses, pose questions, and introduce exhibits doesn’t matter. Just dump every thing into the record somehow, and the judge will figure it out. But the order in which you present evi dence to the court does matter, as much as it does with a jury. Again, the judge has wiped the mental slate clean before trial and knows nothing. If the evidence comes in haphazardly – witnesses, ques tions, and exhibits dropped in wherever and whenever – the judge won’t be able to follow the story and will get confused. (Judges are people. They get confused.) A judge you’ve confused is less likely to be

24 November/December 2022