Bench trials, in which the judge decides both the facts and the law, are often considered to be less demanding than jury trials, but as I finally come to the surface for air after several days submerged in the preparation of a "Proposed Findings of Fact and Conclusions of Law" for a bench trial that began last October, I must say that bench trials are, in many ways, more demanding than jury trials.
In a jury trial, after all the testimony has been heard and all the evidence has come in, the judge instructs the jury on the law — such as the elements of the claims and defenses, as well as evidentiary "limiting" instructions that tell the jury when they can use a particular piece of evidence for this but not for that — and the jury retires to deliberations, where they spend anywhere from a few minutes to a week or more before returning to the courtroom to give each respective party a thumbs-up or thumbs-down, and, sometimes, a number or two.
The jury is not asked to explain why or how they reached their particular conclusion. It is presumed by all present, and by all later courts on review, that the jury followed the instructions given to them by the court to the letter, placing a heavy burden upon the shoulders of any losing party which claims post-trial or on appeal that the jury was wrong on the facts or that the jury misapplied that law.
It’s an intellectual sleight of hand. We can’t really presume that a group of non-lawyer jurors were able to apply from memory a detailed set of legal instructions — instructions that lawyers not only disagree about, but lawyers routinely do not understand themselves — to a wide variety of testimony and evidence also available to the jurors only by memory. Consider that most people can’t even recall the details of their favorite books:
When we read a serious book, we want to learn something, we want it to change us, and it hardly seems possible for that to happen if its fugitive content passes through us like light through glass.
Now, with a terrible sense of foreboding, I slowly turn to look again at my bookshelf. There they all are, “Perjury” and “Kavalier & Clay” and those other books that I have read and of which I remember so little. And I have to ask myself, Would it have made no difference if I had never read any of them? Could I just as well have spent my time watching golf?
But this cannot be. Those books must have reshaped my brain in ways that affect how I think, and they must have left deposits of information with some sort of property — a kind of mental radiation — that continues to affect me even if I can’t detect it. Mustn’t they have?
To help answer this question I called Maryanne Wolf, a professor of child development at Tufts University and the author of “Proust and the Squid: The Story and Science of the Reading Brain.” I described my “Perjury” problem — I was interested in the subject and engrossed in the book for days, but now remember nothing about it — and asked her if reading it had ultimately had any effect on me.
“There is a difference,” she said, “between immediate recall of facts and an ability to recall a gestalt of knowledge. We can’t retrieve the specifics, but to adapt a phrase of William James’s, there is a wraith of memory. The information you get from a book is stored in networks. We have an extraordinary capacity for storage, and much more is there than you realize. It is in some way working on you even though you aren’t thinking about it.”
When a jury deliberates, it’s as if the jury was asked to decide only on the gestalt of the trial. Thumbs-up or thumbs-down.
In contrast, bench trials don’t end with deliberations, they end with the lengthy Proposed Findings of Fact and Conclusions of Law in which the parties have to carefully reference testimony and exhibits for each and every factual contention they seek to prove. The process raises the stakes on plaintiffs (or whoever bears the burden of proof on a particular issue) considerably because there’s no margin for error; if a slippery witness was able to evade giving a coherent answer, or if a obstructionist lawyer was able to interpose just enough frivolous objections to knock their opponent off course, then there is a break in the chain connecting the facts to the law, and the burden of proof has not been met.
I have little doubt that will prevail in this particular case, not least because the opposing party is among the more slippery and evasive witnesses I have ever seen testify. Open any page of the transcript and you can watch his credibility fall right off the page, as if the letters themselves came unbound.
But the whole process always makes me concerned about other cases, not just my own, but cases across the entire system, since it subordinates the merits of the case in favor of the technical application of evidentiary rules in the heat of the courtroom, rewarding evasive witnesses, obstructionist attorneys, and parties that have successfully concealed or destroyed evidence, the very sorts of people who are revealed in the gestalt of a trial, if not in the evidentiary rules, to be charlatans.