Bench or Jury Trial?

A question I have always been curious about is under what circumstances do parties take a bench trial (in which questions of fact and questions of law in the case are decided solely by the judge) and under what circumstances do parties take a jury trial (the jury generally decides the facts of the case, but the judge still determines the law relevant in the case)?

There is a division between how the federal courts and how the state courts deal with bench and jury trials, and also between civil and criminal cases. The federal courts follow the sixth and seventh amendments of the US Constitution, which respectively say,

Sixth: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Seventh:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The federal rules for right to a trial by jury, however, do not apply to the state courts. State constitutions do not necessarily have to provide parties with the same right to trial by jury as the US Constitution provides, but many do so.

Criminal courts give the right to trial by jury to the defendant, who may waive that right. Civil courts can provide the right to both the defendant and the plaintiff in the trial. In civil trials where the parties are entitled to a jury, the defendant and plaintiff must both waive the right to trial by jury; otherwise, if one party still favors to have a jury trial, then a jury trial is given.

There are plenty of cases that are not entitled to a trial by jury. For example, in one case, a defendant in a landlord-tenant case claimed the right to a jury trial because "some facts were disputed." Mr. X, the defendant, claimed that he should be able to live in an apartment promised to him by his girlfriend/wife (wasn't clear if they were married). However, the plaintiff, Ms. Y, is the daughter of the defendant's partner, and she says the apartment was given to her by her mother, that she has the deed to the apartment, and because she wants to sell the apartment and can no longer afford to pay for it, she needs Mr. X evicted. What the judge considered in this motion hearing was whether or not this case merited a jury trial---were there facts in dispute? The judge told the attorney that it was a creative try, but since the plaintiff actually had the deed to the apartment, no facts remained disputed. Only issues of law (NY housing law) remained, and this case would go back to housing court, instead of being trial under a jury in civil court.

If the right to trial by jury applies to a case, it is also up to the lawyer's discretion whether a jury or bench trial would be better for her client. The cons of a bench trial cited by attorneys is that judges have seen many similar cases and are less easily persuaded and are less apt to see the nuances pertaining to each case. The cons of a jury trial include a hastily selected jury (a summary jury trial can restrict jury selection to 30 minutes per side, or even 30 minutes for both sides) and a jury that is swayed by prejudicial factors that do not necessarily pertain to the case at hand (ex. prior unrelated offenses or bad habits that a party admits to).

Sometimes pro se cases end up with a jury trial. Pro se means a party represents him or herself, and is not represented by an attorney. While the right to a jury trial remains even if a party does not have an attorney, this party is at a disadvantage because he may be less experienced at picking a jury than an attorney would be. Before jury selection, the judge generally does advise the pro se on what to do. What usually has happened in these cases is that the party had elected to do a jury trial while he was represented by an attorney, but he had either dismissed the attorney or the attorney had left the case before the trial.

Judges know pretty well how a case will go when attorneys present the vital facts, and in terms of civil cases, judges can roughly estimate how much the injury is worth, and how much the jury will give (if the jury has already been selected and the trial is underway). Judges encourage parties to settle, whether during pre-trial conferences, or even as the jury has gone in for deliberations. Depending in the circumstances, a judge can even recommend a settlement amount for the attorneys, and these suggested monetary amounts can be the tipping point for clients who have refused the opposing side's offers before.

I had asked that question early on in my internship and the answer I had received, which I think was as accurate as a non-long-winded answer could be, was that everyone has a right to a jury trial. But short question, long answer. And only one of many questions to be determined when looking to litigate a case.

Jury Duty

Most of the trials I observed this summer do not resemble Law and Order. There were no battles between Big Brother and corporate giants where I worked. The claims generally fell under $25,000, and the dress was casual for the parties and some of the attorneys. Credit card debts were collected, offending parties in car accidents were sued, and doctors met insurance companies in court to claim $200 a pop for medical procedures that the insurance companies had deemed unnecessary. Daily life goings ons. The “characters”, more like you and your next door neighbor than Jerry Springer. This is what you see when you sit in for jury duty.

There was a case the other day, where a couple in a sedan--the husband driving, the wife, very pregnant, nomming on snacks in the passenger seat--got into an accident with a commercial van. Both parties were suing each other for damages, and their stories didn’t line up. The couple claimed they were making a legal left turn and that all was clear until the van sped up to make the light, and hit them. The men in the van claimed that they were already in the middle of the intersection when the sedan came out of nowhere and hit them. The photos of the damaged vehicles showed damage on the right passenger side of the sedan and on the front bumper of the van. When facts are contested between the two parties, the jury comes in.

What Is The Ceiling Made Out Of?

The Court Life #1

Women attorneys are a minority presence in the courts. It was particularly noticeable when I watched the judge conference with attorneys handling 325Ds (cases with suits >$25,000 that are referred to the civil courts by the Supreme Court). Out of the 30 sets of cases that came up, each with one or two attorneys on each plaintiff/defendant side, I only saw one female lawyer.

While many female lawyers may decide to focus on their families after spending several years working at a law firm, this decision does not account for the huge disparity in numbers of women who are partners and men who are partners. Instead, the policies and general atmosphere that law firms have in place discourage many women from keeping their jobs at the firm. That only 20% of partners are females, while the number of males and females graduating from law school are 50/50, is upsetting.

Maternity leave: Law firms are incredibly strict with time allotted for maternity leave--because what are you going to do? sue the law firm if you don't the time off they will allot to you? Here's a story I heard from a law student: a female lawyer came in and told her boss that she was pregnant. He looked at her in utter confusion, as if to say, "Why on earth would you choose to be pregnant?" She quickly says, "I only want one week maternity leave. I will work up until the day that I am in labor, I will take one week off after I give birth, and then I will be back on my Blackberry and laptop at the end of that week, working from home for a week or two." Her boss looks at her hard. Fortunately, he decides to agree to this plan of action.

Interaction with other attorneys: While males who speak candidly and take drinks with their co-workers are simple having a good time, a female attorney who does the same may be perceived as flirtatious. A female attorney who does not interact with her male coworkers and bosses in a frank way misses out on a great number of opportunities. Catch-22. Regardless of how she acts, her male counterparts have developed an annoying habit of winking at her. If she does make it and break through a couple of ceilings and floors, she will find that it lonely at the top. The number of women in her rank drops steadily as she ascends. There are few female mentors/role models/female leaders in place to advise her as she climbs.

One floor, two ceilings: The Vance Center's report, "Best Practices for the Hiring, Training, Retention and Advancement of Women Attorneys", says that women of color have an even harder time rising to partner status in firms. Discouraged by all of the factors that prevent women from rising, as well as all of the factors that work against a person of color from advancing, the report says that most women of color will leave the law firm after seven years. Almost all will leave after eight years.

What can a woman do? Without changing the institution itself, there are two options. One, mentioned above, is to settle down after a few years and leave the firm. The other is to sacrifice, endure, and keep organized. Female attorneys have headed families--it can be done. However, recent literature holds up Sonia Sotomayor, who is divorced and has no children, and Elena Kagen, who has never married, as the types of women who will be able to rise to the top.

How can the institution be changed? Law firms do not benefit from losing their employees-when an attorney resigns, their clients, cases, etc. disappear as well. The report by the Vance Center estimated that firms lose $500,000 when an attorney resigns.

In light of that fact, I asked a few female law students casually if they thought things might change over the next thirty years for women, just as things have changed dramatically for female attorneys over the last thirty years (not necessarily for the better). They smile and shake their heads, resigned to what's ahead. "Probably not."