Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?
As in most instances, McElhaney offers spectacular guidance on this topic. Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror. While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict. That said, his chapter on Judge Trials from Litigation offers the following advice:
1. Understand your jury. “[K]nowing to whom you are talking makes a difference in what you say and how you say it.” Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices. Make good use of this time.
2. Win the case before you say anything. Write a bench brief that really sings, focusing particular attention on the first three pages. McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”
3. Don’t relax your presentation just because there’s only one juror. Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.
4. Preserve objections. Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal. In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.
5. Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator. McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”