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There may be nothing more exciting in the practice of law than presenting a trial-ready case to a jury.
United States Litigation, Mediation & Arbitration
There may be nothing more exciting in the practice of law than presenting a trial-ready case to a jury. But whether to present the ultimate resolution of a civil dispute to laypersons is a complex decision that counsel usually must make early in litigation, often before fully identifying all of the facts, witnesses, defenses, and themes in the case. Although discovery and pretrial dispositive motions may not differ greatly for matters tried to a jury or a judge, the differences between jury trials and bench (non-jury) trials are numerous once the parties begin pretrial preparation. Moreover, choosing a jury trial instead of a bench trial can significantly impact the procedure and outcome of a litigation.
Despite a trend among litigants towards an increased use of bench trials because of their perceived efficiencies, jury trials may be preferable in many instances. This article explores key issues counsel should consider when deciding whether to take a civil dispute to a jury and when navigating a jury trial, including:
At the outset, counsel considering whether to proceed with a jury trial must determine whether a right to a jury trial exists and ensure that the parties properly demand a jury trial.
The Seventh Amendment of the US Constitution provides the right to a federal jury trial. Although that right is sacrosanct in criminal cases, a jury trial is not always available in civil litigation. However, because federal policy favors a jury trial on issues of fact, a jury trial typically will occur if any party wants and is entitled to it based on the nature of the claims.
Certain cases may require a bench trial, particularly those involving equitable claims for which no right to a jury exists. In some situations, it may be unclear if claims sound in equity. In these cases, district courts typically conduct a two-pronged test to evaluate whether:
(Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989) (describing the two-pronged test and instructing that the second prong be given more weight than the first); Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343, 1348, 1353-57 (11th Cir. 2019) (rejecting the plaintiff's argument that a claim is a legal one where a plaintiff seeks to recover a defendant's profits as a "proxy" for actual damages, and noting that the remedy of an accounting and disgorgement of profits has long been considered equitable in nature).)
Courts frequently favor a jury trial when these two prongs are in tension (see, for example, SFF-TIR, LLC v. Stephenson, 262 F. Supp. 3d 1165, 1234-37 (N.D. Okla. 2017) (holding that the defendants were entitled to a jury trial where the plaintiffs' breach of fiduciary claims sounded in equity under the first prong, but the remedies sought were legal in nature); Flex Fin. Holding Co. v. OneBeacon Ins. Grp. LLC (In Re Flex Fin. Holding Co.), 2015 WL 1756819, at *1-3 (Bankr. D. Kan. Apr. 13, 2015) (holding that the defendants were entitled to a jury trial where they framed an issue about construction of a written contract as declaratory but sought damages), aff'd on reconsideration, 2015 WL 3638007 (Bankr. D. Kan. June 9, 2015); Sedghi v. PatchLink Corp., 823 F. Supp. 2d 298, 305-07 (D. Md. 2011) (holding that the plaintiffs were entitled to a jury trial where a promissory estoppel claim sounded in both equity and law, but the "benefit-of-the-bargain" damages sought were a "classic form of legal relief") (citations omitted)).
In cases involving both legal and equitable claims, a jury may decide the legal claims and the court may decide the equitable claims (see Goettsch v. Goettsch, 29 F. Supp. 3d 1231, 1243 (N.D. Iowa 2014) (holding that the jury would decide the plaintiffs' breach of fiduciary duty claim and the court would decide the equitable claim of judicial dissolution, and to the extent there were common issues in the two claims, the court would decide the equitable claim drawing from the jury's conclusions on the breach of fiduciary duty claim)).
Even where the right to a jury trial exists, a party typically must demand a jury trial before one may occur. Rule 38 of the Federal Rules of Civil Procedure (FRCP) permits a jury trial on some or all factual issues triable to a jury, but only if a party both:
Parties often include a jury demand in the complaint or answer (FRCP 38(b)(1) (stating that a demand "may be included in a pleading")). The written demand may identify all or a subset of issues to be tried by a jury. However, if a party has specified only certain issues in its jury demand, any other party may demand a jury trial on any remaining issues (if a jury trial is available for those issues) within either:
Courts must construe a general demand that does not specify the claims for which a party is seeking a jury trial to cover all issues triable by the jury. (FRCP 38(c).)
If a party does not properly and timely serve and file a jury demand, the party waives the right to a jury trial (FCRP 38(d)). However, a party may file a motion for a jury trial later in the case if the party could have demanded a jury trial at the FRCP 38 deadline (FRCP 39(b)). The court has discretion to grant or deny this motion (Winter Enters., LLC v. W. Bend Mut. Ins. Co., 2018 WL 1522119, at *5-6 (S.D. Ohio Mar. 28, 2018); see also, for example, Fid. & Deposit Co. of Md. v. A-MAC Sales & Builders Co., 2006 WL 3802180, at *1-3 (E.D. Mich. Dec. 21, 2006)).
By contrast, a court may convert a jury trial to a bench trial only if either:
Counsel should consider demanding a jury trial even when it is not yet clear that a jury trial is preferable, unless counsel believes that other parties would not be amenable to stipulating to a bench trial later on should counsel desire one. Waiting to request a jury trial through a later motion is another alternative, but that option is risky given that the outcome is entirely discretionary.
Counsel should keep in mind that if a party demands a jury trial for an issue for which a right to a jury trial exists, other parties may rely on that demand and need not file a separate demand (see SEC v. Jensen, 835 F.3d 1100, 1106-08 (9th Cir. 2016)). Therefore, the party that made the initial demand may be locked into a jury trial even if it later desires a bench trial.
There are numerous perceived advantages of a bench trial over a jury trial, such as greater efficiency in the trial process and having a more sophisticated trier of fact resolve the dispute. Although these advantages may suggest that a bench trial is preferable in certain cases, there are numerous reasons for parties to consider a jury trial, including:
Because jury trials often involve fewer pretrial submissions than bench trials, a jury trial may result in lesser costs in certain cases. For example, parties generally must present live witness testimony in jury trials, eliminating the need for preparing and submitting detailed pretrial direct examination declarations (and rebuttal evidence, if the court allows).
Additionally, no proposed findings of fact or conclusions of law are necessary in jury trials, whereas many courts require these submissions in bench trials both before trial and again in an updated form at the end of trial to account for the evidence received. These submissions can range from dozens to hundreds of pages in complex cases and represent significant costs.
The speed within which a jury returns a verdict is nearly always faster than the time it takes for the court to issue a decision in a bench trial. Following bench trials, parties frequently marshal the evidence and arguments in post-trial submissions, a process that may stretch weeks or even months after the trial concludes. By contrast, when evidence is presented to a jury, the jury typically deliberates immediately after the parties rest and returns a verdict within hours or days.
Many attorneys believe that judges are more sophisticated triers of fact than juries and better able to analyze complex factual disputes, such as those involving mechanics, patents, or financial markets. However, federal juries also can bring a wealth of experience and knowledge to the deliberation process, as well as the common-sense perspective of laypersons.
Courts have been quick to praise jurors' capabilities and wisdom (see, for example SFF-TIR, LLC, 262 F. Supp. 3d at 1195 ("I think [jurors are] a lot more capable of understanding issues than [they are credited]. . And sometimes they bring a heavy dose of common sense. . I believe in the wisdom of groups and they do a good job.") (citations omitted); Burgess v. Codman & Shurtless, Inc., 2016 WL 9175471, at *3 (E.D. Tenn. Sept. 1, 2016) ("We trust jurors to use their personal experiences and sensibilities to value the intangible harms such as pain, suffering, and the inability to engage in normal activities.")). Courts have also noted that experts in their "essential role as teachers to the jury" can explain complex concepts and assist jurors in assessing complicated factual disputes such that a bench trial does not necessarily offer greater fairness in complex cases (SFF-TIR, LLC, 262 F. Supp. 3d at 1237).
Several procedural and practical differences exist between jury and bench trials, including:
Parties may submit pretrial motions regardless of whether the dispute is being tried before a jury or a judge. Federal judges have inherent authority to manage trials before them, including the ability to rule on dispositive and evidentiary issues before trial (see Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (noting that the court's inherent authority to manage trials includes in limine rulings); In re Kvassay, 2019 WL 545673, at *10 (B.A.P. 9th Cir. Feb. 11, 2019) (appeal pending) (noting the court's inherent authority to decide a summary judgment motion before trial)).
Pretrial motions take various forms, including:
While these motions are also available in bench trials, the court's timing for issuing a ruling may differ in jury trials. These motions are particularly critical in jury trials because they help to avoid prejudicing or confusing jurors.
Regardless of whether a case is going to a jury or a judge, the substance of a summary judgment motion generally does not differ. A party may move for summary judgment and the court may grant the motion "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" (FRCP 56(a)). Parties may move for summary judgment within 30 days of the close of discovery or as the court otherwise orders (FRCP 56(b)).
The timing of the court's decision on a summary judgment motion may differ depending on whether the case is set for a jury trial or a bench trial. In jury trials, courts almost always decide a summary judgment motion before trial in an effort to narrow the issues that a jury must decide, whereas in bench trials, a court may sometimes rule on a summary judgment motion after the trial has started, and sometimes, even after the trial has ended.
A party may bring a motion in limine to exclude, limit, or include evidence before it is offered at trial. As with summary judgment motions, motions in limine are another type of "gatekeeping" motion that allows a court "to rule on evidentiary issues in advance of trial in order to avoid delay and ensure an evenhanded and expeditious trial and to focus on the issues the jury will consider" (Goldman v. Healthcare Mgmt. Sys., Inc., 559 F. Supp. 2d 853, 858 (W.D. Mich. 2008)). Motions in limine are especially important in jury trials to avoid tainting a jury with inadmissible evidence (see Figgins v. Advance Am. Cash Advance Ctrs. of Mich., Inc., 482 F. Supp. 2d 861, 865 (E.D. Mich. 2007)).
Common grounds for seeking to preclude or limit evidence include prejudice, hearsay, or lack of relevance under the Federal Rules of Evidence (FRE) (see, for example, Burgess v. Codman & Shurtless, Inc., 2016 WL 9175471, at *1-2, *3-4 (E.D. Tenn. Sept. 1, 2016) (denying a motion to exclude the plaintiff's loss of earning capacity evidence based on deposition testimony that the plaintiff was retired at the time of the alleged injury because it created "a question of fact as to the issue of such damages" and related "to the weight of the evidence rather than to admissibility," and granting a motion to exclude use of a witness's drug-related felony conviction for impeachment because it "would serve little purpose" and could tempt the jury to improperly focus on the witness's conviction rather than the substance of her testimony)).
Parties may also bring motions in limine to set limits on the damages or remedies sought (see Daniel v. Garcia, 2019 WL 1324235, at *5 (E.D. Mich. Mar. 25, 2019) (allowing evidence of the plaintiff's negligence to be admitted at trial so that the jury could consider allocating fault in its damages award)).
Parties may bring motions in limine before trial as well as during trial, if issues arise and the motion is deemed timely. However, in a jury trial, courts generally prefer to decide these motions before trial where possible to streamline the introduction of evidence and to limit or eliminate the need for breaks or sidebars to rule on the motion outside the presence of the jury.
A common pretrial motion that can be critical in a jury trial is a Daubert motion to exclude or limit the scope of expert testimony that is not reliable or relevant and does not meet certain evidentiary requirements (FRE 702; see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)). Daubert challenges are often accompanied by motions or arguments under FRE 403 that the expert's testimony is irrelevant or likely to confuse the jury. Generally, parties may make Daubert challenges based on the expert's:
Courts analyzing a Daubert motion must ensure that the expert, whether basing an opinion on professional studies or personal experience, utilizes the appropriate intellectual rigor expected in the relevant field (see Beastie Boys v. Monster Energy Co., 983 F. Supp. 2d 354, 362-65 (S.D.N.Y. 2014) (holding that it was appropriate to instruct the jury that an expert's testimony was relevant only to damages, and that the expert could not opine on "likelihood of confusion" because his conclusions were not relevant to the Lanham Act liability standard and his methodology of testing consumer perception, which was to poll coworkers at his office, did "not pass the laugh test")).
Although judges in bench trials often reserve decision on Daubert motions until their decision on the merits, in jury trials they must decide Daubert motions before the evidence is presented to the jury.
There are a number of pretrial submissions unique to jury trials that the parties typically must prepare and submit (either separately or jointly) to the court, including:
Courts commonly require parties to submit these documents simultaneously with deposition designations, exhibit lists, witness lists, and related stipulations, often as part of pretrial memoranda explaining the parties' claims and defenses and highlighting key legal disputes (see below Introducing Evidence).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
