Recent articles written about COVID-19’s effect on litigation all seem to have the same refrain: The logistics of impaneling a jury are daunting and jury trials may not be able to resume until 2021. As the backlog of cases build, we write to start a dialogue and suggest that trial lawyers and trial judges, both of whom are understandably concerned about timely case resolution, need to give more thought and consideration to bench trials.
As former trial lawyers and now trial judges, we have heard and considered the hesitations raised about a bench trial. These range from: “I don’t know the judge’s leanings and therefore I am uncomfortable placing the verdict in the judge’s hands;” it “depends on the judge;” is the judge “prosecution or defense oriented” or the “plaintiffs or defense oriented.” Plaintiffs lawyers may understandably feel that they will be better able to emotionally sway a jury than a judge to return a higher pain and suffering verdict. All trial lawyers, both criminal and civil, may properly believe that the prospect of a firm trial date to pick a jury will help to induce a plea or settlement. Finally, judges may not want the additional responsibility of making credibility determinations and finding facts, tasks traditionally left to juries.
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