How To Win Over Bench Trial Judges Post-COVID
In this article for Law360, partners Jim Hurst and Jon David Kelley discuss various methods to refine and sharpen an advocate's rhetorical and strategic tools in a bench trial setting in a post-pandemic world.
As the country emerges from a pandemic, courts face an unprecedented backlog of cases and are increasingly sensitive to the inefficient use of time, both before and during trial.
This is especially true in a bench trial setting, where the court is already familiar with the claims and many of the facts, and is likely to have little patience for redundancy or delay. This enhanced focus on time and efficiency should affect the practitioner's approach to trying a winning case.
And the stakes are high: Just this year, courts were willing to award significant punitive damages and issue rulings in highly publicized cases with significant implications for the plaintiff municipalities.[1]
For example, in BMC Software Inc. v. International Business Machines Corp. on May 30,[2] a judge awarded the plaintiff $717 million in punitive damages in the U.S. District Court for the Southern District of Texas.
Last month in Namisnak v. Uber Technologies Inc., a judge held in the U.S. District Court for the Northern District of California that Uber was not obligated to provide wheelchair-accessible vehicles in two southern cities.
Elon Musk's ongoing battle with Twitter Inc. in Delaware Chancery Court — currently set for an Oct. 17 bench trial — provides perhaps the most obvious example of an expedited case with enormous financial implications for both sides.
This unique emphasis on efficiency requires an advocate to think big-picture and litigate with purpose. That means constructing and ultimately trying an efficient case focused closely on the elements of the claims at issue, and the facts necessary to tell a compelling and winning story.
As with most aspects of lawyering, crafting and delivering a winning argument is more art than science, but litigating with purpose from the outset greatly increases the likelihood of a favorable result, especially in the context of a bench trial.
This article identifies various methods to refine and sharpen the advocate's rhetorical and strategic tools based on the authors' own experience trying cases before a judge in a post-pandemic world.
Pretrial Strategy: Understand the Facts, and Begin at the End
Start with your closing argument and frame your case.
Effective advocates are good storytellers, and an efficient and compelling story is critical to frame early and build through trial.
Simply put, the party that tells the most compelling story both legally and factually should, and often does, win the case. This is as true in a bench trial as it is in a jury trial.
The reason is simple: Human beings understand and make sense of the world through stories.
These stories are shaped by those around us, our experiences and our immediate context, and often reflect a shared cultural understanding — something psychologists refer to as the collective unconscious. This may be good therapy, but it also makes for good advocacy.
From an advocate's perspective, this means that most people are naturally good at identifying stories that lack integrity or don't make intuitive sense. A judge is no different. In fulfilling its role as fact-finder at trial, a court will apply the law to the facts after assessing the veracity of the factual narratives presented by both sides.
The first step in litigating a case should therefore be the development of a story that is simple and true, persuasive, intuitive, compelling and succinct. It should include equal parts intellectual and emotional appeal, which a court can use to apply the law to the facts and find in your client's favor.
One of the most efficient and effective approaches to trying a case is to begin by crafting the closing argument. By starting at the end of a case and working backward, an advocate can litigate an entire case with a laser-like focus on closing and the evidence necessary to make that argument.
This approach allows a party to litigate with the big picture in mind. Far too often, lawyers see themselves as a hammer and every factual disagreement as a nail. Resist this temptation.
Instead of reacting impulsively and engaging in every potential dispute, litigating with purpose means responding thoughtfully to issues raised throughout a case and fighting only where it matters.
This efficiency is one that clients and courts alike appreciate, and one that can build invaluable credibility with the court.
Develop a theme and incorporate throughout your case.
A theme is equally important in driving a case efficiently toward trial. As the distilled essence of your story, it is crucial that your theme be simple — no more than a sentence or two.
However phrased, a good theme should be repeated frequently and drive trial strategy. With every piece of evidence and witness, ask whether it supports and proves your theme, and whether it is necessary to prove your theme.
Just because a piece of evidence or a witness may be helpful does not make that piece of evidence or witness necessary to prove a case.
In that way, a theme supports and focuses a good story and allows an advocate to litigate with purpose. It should tie together each piece of evidence, each cross or direct examination, and each argument.
Trial Strategy: Listen, Respond and Stay Flexible
During a bench trial, thinking big-picture and litigating with purpose means capitalizing on the pretrial credibility you've built with the court and delivering a consistent and efficient narrative that leads the court to a favorable ruling.
Before trial, the details of your story are likely to shift as witnesses are deposed and additional facts emerge, but your theme should not change. If it does, you and your client will lose credibility. The theme you've repeated as a mantra throughout your pretrial case should be broad enough to allow flexibility in the details of the story you tell, but it must be the same theme at trial.
In addition to adhering closely to your theme, always remain alert and sensitive to feedback received from the bench at trial.
Unlike a jury, a judge will offer feedback throughout trial in the form of questions, rulings from the bench, and nonverbal cues. This feedback is among the most important and useful insight a lawyer could receive, but it requires the lawyer to listen, respond and stay flexible in considering potential adjustments to trial strategy.
Adapt as you receive feedback — add or drop arguments, and pivot as necessary without compromising your story or theme.
Several key aspects of a bench trial should be considered in trying an efficient case, including the following.
The court will be more inclined to allow the introduction of evidence.
At the outset of any bench trial, the court will be familiar with the facts, the claims, the lawyers and at least some of the strengths and weaknesses of the case. This familiarity, combined with the judge as fact-finder, means the court will be more inclined to allow the entry of evidence at trial.
Thoughtful trial lawyers should plan accordingly and consider adjusting their trial strategy in at least a few ways:
File fewer, or more targeted, motions in limine.
In a bench trial, seeking to exclude certain evidence with a motion in limine could have the reverse effect, and may only highlight the existence of evidence in a way that is ultimately unhelpful. Without a jury to consider, the court is also more likely to deny pretrial motions in limine or defer ruling to trial, which make these motions even more of a gamble.
Ultimately, be selective in the pretrial evidence you seek to exclude by stipulating where possible, filing only on the most important issues, and crafting targeted motions that seek the exclusion of a more limited set of evidence where possible.
Be strategic in objecting to deposition designations, evidence and live witness testimony.
The same concerns dictate a similar result when considering objections to deposition designations, various evidence and witness testimony at trial. In objecting during a bench trial, the relevant question is not whether the advocate can make a good faith objection, but whether it ought to be made in the first place.
Put simply, the touchstone for any objection should be its impact on your case's theme and the story you are telling. Does it harm your case as you have framed it? If yes, lodge your objection. If no, let it be.
Make your points and be concise.
In arguing your case at trial, reinforce your themes and address relevant elements while remaining concise and eliminating unnecessary redundancy. Discuss but don't belabor background facts and move to the heart of the dispute quickly and efficiently.
There is a fine line between reinforcing necessary points and unnecessary duplication. This is another reason to remain alert and sensitive to feedback from the bench. Never be afraid to revisit and revise your list of trial witnesses and experts based on real-time feedback from the judge.
Use demonstratives strategically and often.
One of the most powerful tools any lawyer has at her disposal are demonstratives that might accompany an opening, a closing, a direct or even a cross-examination.
Visual tools are incredibly important in distilling and conveying an argument, but brevity is the soul of a good demonstrative. Most lawyers are familiar with and regularly use demonstratives at trial, yet most are plagued by too many words on the screen.
More text means the point is more complicated, the advocate is more inclined to read from the screen and the rhetorical impact is limited. An effective demonstrative should be visually interesting and give just enough guidance that the advocate can elaborate as necessary. It should aid the story being told, not spell it out.
As a general rule, demonstratives should include as few words as possible — striving for fewer than 10 per slide, unless citing a quote — and should include a clear nexus to your story and theme. It should be clear and creative: Charts and other visual aids can be powerful, especially when reinforcing your themes and highlighting key testimony.
Finally, the best visual aids can be reused throughout trial — for example, to introduce themes in opening, to reinforce themes with experts and fact witnesses, and to reiterate key arguments in closing.
Continue to build and maintain credibility throughout trial.
Credibility is hard won and easily lost. For that reason, trial presents an opportunity to capitalize on pretrial credibility earned with the court.
Trying a case with purpose means making strategic decisions at trial that continue to bolster your credibility with the court and make it even easier for the judge to find in your client's favor.
While a potentially infinite number of factors might influence your credibility before the judge, the following strategies are among those most likely to have an impact at trial:
Give opportunities to more junior attorneys.
Every trial is a team effort, and the various attorneys at the lectern in a trial setting should reflect that. Giving in-court opportunities to more junior attorneys should be a staple of every trial.
The experience itself is invaluable for attorney development, but it is also strategically smart: Judges almost uniformly like to see other attorneys given opportunities, especially at trial. Being generous with trial opportunities is a win-win.
Be physically present.
It's been said that 80% of life is showing up, and the same is true of trying a winning case. It's a deceptively simple concept: Lawyers trying any case should be in court as much as possible to avoid the impression that they are parachuting in for an argument.
Regular attendance is both strategically important and a sign of respect to the court. When you have competing demands that might take you to other jurisdictions in the middle of trial, resist the temptation.
If unavoidable, make clear to the court when you are leaving and when you will be back. Be consistent and communicate well.
Win and, especially, lose well.
As every seasoned trial lawyer knows, no one wins every argument. Losses are inevitable and should be taken with the same poise and class as a win.
Remember: You and your team are under the microscope throughout trial. The judge is watching your every movement just as a juror would.
When the court sustains your objection or hands a winning ruling, don't abuse the win — take it in stride and be careful not to exceed the scope of what the court granted.
And when you lose, clarify if necessary and move on quickly. Don't linger or argue.
Be professional and kind.
Be kind and professional throughout the case, and especially at trial. In an adversarial profession where tensions frequently run high, the lawyer who remains unflappable and treats others with respect and civility stands out. This applies not just to opposing counsel, but to other lawyers and staff on your team, especially.
Lawyers are apt to forget that the tone for any team is set by the lawyer at the top. When things go awry, don't escalate. Be a calming force. This is the right thing to do, and the judge is also likely to notice.
Close strong.
A strong closing argument is the pinnacle of any case tried purposefully from the outset with an understanding of the big picture. This is the moment to capitalize on your personal credibility and the credibility of your story, both of which should align seamlessly.
An effective closing reinforces framing and themes, and makes express the evidence presented at trial that aligns with your narrative, meets the legal elements and requires a result in your favor.
Whenever possible, reference your opening and remind the court that you delivered on every promise made in your opening — highlighting and reinforcing that you've tried a thoughtful and efficient case from beginning to end.
Remind the court what the witnesses said, what the evidence showed and what opposing counsel failed to show, while addressing and neutralizing any bad evidence.
Above all, be authentic, honest, professional and dynamic. Like jurors, judges can sense authenticity and know when a lawyer is insincere or merely reciting platitudes.
Good advocates almost always exude authenticity and dynamism — especially during opening and closing. Courts may not be as susceptible to emotional appeals and hyperbole as jurors, but they are still human beings who share a common experience.
A dynamic advocate — relatable, expressive and modulating in tone — will always be more effective.
Conclusion
There is no way to fully predict or control the outcome of a bench trial, but the quality of advocacy can be controlled, and as a consequence may be the single greatest contributor to success an advocate can directly influence.
As the legal landscape shifts in a post-pandemic world, advocates should consider adjusting their style to always think of the big picture. Using these suggestions as a guide, a party can litigate with a purpose that will naturally result in increased efficiency and credibility, and better the odds of prevailing at trial.
Jim Hurst and Jon David Kelley are partners at Kirkland & Ellis LLP.
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] See, e.g., Namisnak et al. v. Uber Technologies Inc. , 3:17-cv-06124 (holding that Uber was not obligated to provide wheelchair-accessible vehicles in two Southern cities); City of Huntington v. AmerisourceBergen Drug Corp. et al. , case number 3:17-cv-01362 (holding that opioid distributors were not liable under a public nuisance theory for causing an opioid epidemic).
[2] See BMC Software Inc. v. International Business Machines Corp. , 4:17-cv-02254, S.D.T.X. (awarding plaintiff $717 million in punitive damages).
