The Virginia Business Litigation Blog
The right to have disputed facts determined by a jury, rather than a judge, is protected by both the United States Constitution as well as the Virginia Constitution. Litigants retain the option, however, of submitting their dispute to a judge, in what we call a “bench trial.” The court will schedule a jury trial if either party requests one. But should you? There’s no one-size-fits-all answer to this question. Some cases are better suited to juries and others better suited to experienced judges. Below are some of the relevant considerations as you decide whether to seek a jury in your case.
1. Does the case have emotional appeal?
Juries aren’t supposed to make decisions based on passion, prejudice, or gut feelings, but they often do. Perhaps the law is not entirely on your side but you have a very sympathetic case. Although judges are human, too, judges are more likely than juries to be able to dispassionately apply the law and not rely on raw emotion as a basis for making a decision. Juries may do what they feel is right regardless of what the jury instructions direct them to do based on the applicable law.
2. Is the case highly technical or complex?
Juries are typically composed of laypeople drawn from the local community. They will come from a variety of backgrounds and have varying education levels. You’re not likely to end up with a jury full of electrical engineers who will be fascinated to hear the ins and outs of your patent dispute. Judges, on the other hand, often have years of experience presiding over complicated technical cases and may be better able to understand the evidence and make a reasoned decision. (Or at least not fall asleep). Many judges will also routinely ask questions of witnesses to make sure they understand the evidence being presented; jurors don’t have that ability.
3. Can you make any predictions about how the judge might view your case?
Some courts don’t assign trial judges until the morning of trial. Others assign trial judges the moment a new case is filed. If you’re in a jurisdiction that assigns a trial judge well in advance of the trial date, do some research to see how the judge has ruled in cases similar to yours. There’s no guarantee the judge will rule the same way in your case, but it’s generally easier to predict how the judge will rule than it is to predict what 7-12 strangers will do. Maybe the judge has shown a tendency to side with large corporations over consumers. Or maybe the judge has demonstrated sympathy with cases brought by single mothers. Whatever it is, if you 
sense a judge may be predisposed to rule in your favor, that might be a reason to avoid seeking a jury trial.
sense a judge may be predisposed to rule in your favor, that might be a reason to avoid seeking a jury trial.4. What do the jury instructions say?
For better or for worse, most trial judges instruct the jury based on preprinted templates. Sometimes these templates are a perfect fit for the facts of your case and suggest a favorable outcome; other times they don’t quite work as well. Some instructions are so confusing that even we lawyers don’t quite understand them. (I once objected to a proposed instruction on the basis that it was too confusing. The judge overruled my objection and delivered the instruction. I was vindicated when, in the middle of deliberations, the jury wrote down a question for the judge, which essentially asked, “What does Instruction X mean, exactly?”) If the jury instructions aren’t likely to lead to a favorable verdict, consider going with a bench trial.
5. How much time and money do you have?
Expect jury trials to cost more in legal fees and take longer to conclude. Jury trials require the attorney to do a bit more trial preparation than they would otherwise do to prepare for a bench trial, such as drafting jury instructions, planning voir dire, and crafting opening statements and closing arguments with a bit more dramatic flair.
6. What’s going on in the news?
Social trends can sometimes influence how juries view the evidence. Judges are more likely to be able to shut out current events and focus solely on the evidence. During the height of the #MeToo movement, for example, many juries probably felt some extra sensitivity to issues involving sexual harassment in the workplace.
7. Are punitive damages a possibility?
In tort cases involving egregious conduct, punitive damages may be available. See Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992) (holding that “[a] litigant, who seeks an award of punitive damages, must present evidence that the defendant’s acts were ‘so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct'”). Studies have shown that when it comes to punitive damages, juries tend to award larger amounts than judges. This is probably related to point #1 above, which is that juries are more likely than judges to do what “feels right” rather than apply a technical legal principle that may not be as emotionally satisfying.
Ultimately, the decision to request a jury trial or a bench trial should be based on a careful analysis of these considerations in the context of your specific case.