By Rick Norris, Connor Scott and Karen Luong

Law360 (May 8, 2020, 5:47 PM EDT )

Rick Norris

Connor Scott

Karen Luong

In response to COVID-19, courts across the country have temporarily suspended jury trials. These measures are temporary while the world figures out how to move forward in light of the pandemic. But even when courts resume operations, civil trials may not be the same for some time. 

For as long as one can remember, it was common practice to gather hundreds of potential jurors in one room for jury orientation, before calling at least 40 jurors at a time into small courtrooms. Jurors would sit directly next to each other for the entire trial, convene together at breaks and lunch, and be sequestered together during deliberations, generally in small rooms. 

As courts slowly reopen following COVID-19, significant modifications to how jurors proceed through the system may be required. These changes will certainly limit the number of jurors available for the foreseeable future.

In many jurisdictions, criminal trials will take priority over civil matters, even preferential civil matters. If there is a shortage of jurors for civil trials, attorneys may be forced to decide whether to waive a jury or wait for an unknown period of time to have their matter tried to a jury. 

This article addresses the options and choices trial attorneys will likely face looking forward, and discusses the pros and cons of electing a bench trial over a jury trial. 

Jury Trials Are Constitutionally Guaranteed in Most Cases

The Seventh Amendment to the United States Constitution guarantees the right to a jury trial for almost all civil trials. Many states have the same constitutional guarantees.

However, the right to a speedy trial — granted to criminal matters under the Sixth Amendment — is not extended to civil trials. While many parties in civil litigation desire a speedy trial, the strain placed on scarce judicial resources by the COVID-19 crisis means that jury trials for the foreseeable future may be limited to criminal matters where the right to a speedy trial is guaranteed.

Factors to Consider Before Waiving the Right to a Jury Trial

Law360 reported recently regarding a notice to counsel from the U.S. District Court for the Southern District of New York, telling the parties in Ferring Pharmaceuticals Inc. et al. v. Serenity Pharmaceuticals that the court "fully intends" to proceed with the bench trial of this patent lawsuit before summer. The court stated that "[b]ench trials are the one type of proceeding that can go forward, even during a pandemic."[1]

The constitutional right to a jury trial can be waived in favor of a bench trial. While the decision to pursue a bench trial is complex, there are several clear trade-offs that should be considered, if a timely jury trial becomes unrealistic:

Bench trials are effectively a jury of one. 

The judge is both the arbiter of law and the finder of fact. But counsel cannot often pick their judge. Before deciding on a bench trial, attorneys must have carefully considered the judge's predispositions, history and prior rulings.

Judges take proactive roles in bench trials.

A judge in a bench trial will typically be more active in asking questions of witnesses on the stand, both because the judge is the finder of fact, and because there is no jury to be unduly influenced by a judge's questions. In contrast, Law360 recently reported on issues that arise when judges take an overly (or overtly) active role in a jury trial. 

The California Court of Appeal in Pinter-Brown v. Regents of University of California recently reversed a jury verdict in favor of a UCLA oncologist in a wrongful termination claim, finding multiple judicial errors, including a presentation by the court at the commencement of trial, telling the jurors that "it was their job to be Dr. King" and to bend "the arc of the moral universe toward justice." 

This introductory presentation "rendered the trial fundamentally unfair."[2] Judges also have more leeway in this regard with respect to the propriety of their questioning, and most states grant "certain evidentiary allowances ... that differ from a jury trial."[3]

Certain evidence may be allowed in a bench trial that would be excluded in a jury trial.

In a jury trial, a judge may have concerns about permitting the presentation of evidence that may be  inflammatory or unfairly prejudicial, or hearsay evidence, or expert opinions that have limited foundational merit. These concerns are not present in a bench trial. "In a bench trial, we assume that the district court was not influenced by evidence improperly brought before it unless there is evidence to the contrary."[4]

Bench trials can also result in written opinions that provide explanation and context for a ruling.

Under Federal Rule of Civil Procedure 52(a), in an action tried without a jury the court must "find the facts specially and state its conclusions of law separately." Additionally, the factual findings of the court on a bench trial are accepted on appeal "unless they are clearly erroneous."[5]

Bench trials are generally shorter and less costly than a jury trial. 

The absence of the jury selection phase, including time and money spent on jury consultants and increased attorney fees, can lead to significant savings. Judges in bench trials may also be more willing to take evidence in writing, rely upon deposition testimony, or utilize remote technology.[6]

It is also important to note that certain types of cases may be better suited for bench trials. In cases dealing with sophisticated business issues, scientific issues or complex facts, judges may be able to better navigate the subject matter.

Bench trials may work better for defendants in emotionally charged cases.

In emotionally charged cases, a judge's training and temperament may facilitate a better-reasoned result and limit the opportunity for runaway jury verdicts. Alternatively, a personal injury plaintiff might benefit from trying the case before a sympathetic jury.

However, if the plaintiff's health and age are such that life expectancy is limited, or the plaintiff seeks an expedited trial to address medical bills or lost wages, the plaintiff's counsel might have to consider waiving the right to a jury in order to get the case to trial quickly.

Remote Trials Remain an Open Question for Litigants

Before agreeing to waive a jury trial, the parties should also have a discussion with the court regarding how a bench trial would be conducted, specifically whether the trial would be conducted in person, or through virtual means. Facing the realities of a virulent global pandemic, courts have begun exploring technology for conducting virtual hearings, arraignments and other matters previously handled through live attendance.

Court reporting agencies have touted technology for the remote sharing and introduction of exhibits during depositions. Courts have encouraged parties to use such services to conduct discovery. 

As courts slowly reopen after this pandemic, judges in bench trials still may be inclined to push for remote trials or remote witness examinations. While such mechanisms may be tolerable for discovery depositions, attorneys should consider whether such technology can fully replicate a live trial.   

Counsel should consider their ability to effectively confront witnesses virtually through the use of prior testimony, documents and other evidence. There will also be concerns regarding the level of advocacy that can be conveyed effectively through virtual services. Can a judge fully evaluate the witnesses' credibility, tone and demeanor remotely? Some courts have already answered this question in the affirmative. 

In RFC & ResCap Liquidating Trust Action,[7] a bench trial was in process when the COVID-19 crisis hit. The defendants sought leave for their witnesses to testify by videoconference in lieu of traveling. The plaintiff's counsel contended that videoconference expert testimony would be "patently unfair," particularly since the plaintiff's experts had testified live. 

The court disagreed, holding that COVID-19 constituted good cause for the request and that "modern videoconference technology ... satisfies the goals of live, in-person testimony and avoids the short-comings of deposition testimony."[8] Importantly, the court cited advisory comments to FRCP 43(a) that remote testimony through "[c]ontemporaneous transmission may be better than an attempt to reschedule the trial."[9] It also held that "as this is a bench trial, the Court is confident it will adequately understand" the expert's testimony "even through videoconference technology."[10]

If virtual trials are a concern for advocates, they should seek input from the court on how a bench trial would be conducted and the court's technological capacities before agreeing to waive a jury trial. 

Conclusion

It is not realistic to assume that courts will spring back to normal processes immediately upon the lifting of full stay-at-home orders. Courts initially will need to adopt new rules for processing jurors through the system, to eliminate or minimize the number of jurors who must be physically present in the courtroom, or to accommodate ongoing social distancing and other protocols from the Centers for Disease Control and Prevention. 

This could create continued delays in civil jury trials. Litigants should begin evaluating their cases to determine whether the particular factual and legal issues, financial concerns and presentation considerations make their cases appropriate for a bench trial.

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Frederic (Rick) Norris is a partner, Connor M. Scott is an associate, and Karen Luong is senior managing associate at Dentons.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Notice to Counsel, Ferring Pharmaceuticals, Inc., et al. v. Serenity Pharmaceuticals, LLC, et al. (April 23, 2020) (No. 1:17-CV-09922), ECF 678; https://www.law360.com/articles/1267676/sdny-chief-judge-s-may-ip-trial-plan-has-lawyers-nervous-.

[2] Pinter-Brown v. Regents of Univ. of California , No. B290086, 2020 WL 1950808, at *1, 20-21 (Cal. Ct. App. Apr. 23, 2020).

[3] Dunn v. State , 325 Ga. App. 888, 889, 756 S.E.2d 17, 19 (2014).

[4] United States v. Shukri , 207 F.3d 412, 419 (7th Cir. 2000).

[5] Bhd. of Locomotive Engineers v. Springfield Terminal Ry. Co. , 210 F.3d 18, 30 (1st Cir. 2000).

[6] See, e.g., In re RFC & ResCap Liquidating Tr. Action , No. 013CV3451SRNHB, 2020 WL 1280931, at *2 (D. Minn. Mar. 13, 2020) (allowing defense experts to testify via videoconference when COVID-19 pandemic occurred in middle of bench trial).

[7] In re RFC & ResCap Liquidating Tr. Action, No. 013CV3451SRNHB, 2020 WL 1280931, at *2 (D. Minn. Mar. 13, 2020).

[8] Id.

[9] Id. at *3.

[10] Id. at *4.

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