Departments Judges' Corner How to Lose a Bench Trial, 1113 COBJ, Pg. 111
| Author | Robert L. McGahey, Jr. |
Robert L. McGahey, Jr.
Judges’ Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, please send an e-mail to Coordinating Editor Stephanie Dunn, Colorado Court of Appeals Judge, at stephanie.dunn@judicial.state.co.us.
Trial lawyers (and the people who teach them) tend to focus on improving jury trial skills. There are good reasons for this: jury trials are more interesting, jury trials are more fun, and jury trials (at least in the conventional wisdom) require a more sophisticated set of skills to win. It’s important to remember, however, that many more proceedings are bench trials—or things that look, walk, and quack like bench trials, such as domestic relations proceedings, administrative hearings, hearings on motions, dependency and neglect proceedings, and delinquency hearings. It also is important to remember that many young lawyers now cut their advocacy teeth on this kind of non-jury proceeding.
For these reasons, I think there is some value in discussing bench trials or their equivalents. As a judge, I am frequently shocked by the difference between the way even very good lawyers approach bench trials and the way they approach jury trials. From painful experience, I offer the following six suggestions on how to make sure you lose a bench trial.
Don’t Be Organized
>Come to court without reviewing the applicable case and statute law.
> Don't pre-mark your exhibits.
> Don't try to find out whether you and your opponent are offering the same exact exhibits.
> Never check to see whether you and your opponent can stipulate to the admission of all or some of the exhibits.
> Have your witnesses meet you in the hall right before going into the courtroom and give them no real preparation.
> Don't think out or plan your cross-examination.
> Don't have an obvious theme and theory to catch the judges interest.
Don’t Be Flexible
> Be surprised that sometimes judges schedule bench trials around other proceedings, and that you may be interrupted.
> Ignore the fact that, in Colorado, judges are allowed to ask questions1 —and the questions a judge asks may not be what you are prepared to deal with at that moment.
> Insistvehementlyon an absolutely strict compliance with the Rules of Evidence, even though in Colorado judges are presumed to ignore irrelevant evidence in making their findings of fact and conclusions of law.2
> Be so locked into what you want to do that you ignore hints from the judge on what he or she would like to hear.
Don’t Be Efficient
> Before trial, make motions in limine to exclude evidence—even though the judge has to look at the evidence to rule.
> Do so much useless discovery before trial that you run up a huge bill.3
> Don't schedule...
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