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Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.

Brad: Hello, and welcome back to the Reed Smith Disputes in Perspectives podcast. I'm Brad Funari, a litigation partner in the Global Commercial Disputes Group, resident here in Pittsburgh, Pennsylvania. With me is my new partner in our new office in Denver, Colorado, Adam Massaro. We're going to be talking today about a new topic. We're going to be talking about non-jury trials, requests for equitable relief, and evidentiary hearings where we don't have a box full of jurors. We're going to offer some practice pointers, some best practices, and probably tell a few war stories along the way. So without further ado, I'm going to turn it over to my new partner, Adam, who's going to introduce himself and his practice.

Adam: Brad, I appreciate the introduction and allowing me to join today. Very excited. Today, actually, I believe marks right around the four-month anniversary from coming over to the new firm and helping to found the Denver office. We've been nice and busy, two trials already, and it's been really fitting well with, likewise, my national litigation practice, which seems to span states and spectrums across the way. So I'm looking forward to talking with you today.

Brad: Great, great. Well, let's kick it off, Adam, and let's start with, I guess, kind of a threshold question, which is you as trial counsel often find yourself in a position where you may have a choice of whether you try the case to a jury or to a judge. When you are given that opportunity, and every case is different, obviously, what factors or what considerations do you give in advising a client about whether you go jury or non-jury?

Adam: That's an interesting question. It's certainly something we raise in almost any case unless there's a clear jury waiver situation. Some of the things I think about, number one, are first, who are the main clients and how will they present in front of a jury? That's, to me, one of the biggest factors that I think about. The second factor, I do give some weight to subject matter. However, I've presented complex cases to jurors as well as complex cases to judges. And sometimes the jurors actually get it better, especially high-tech cases in that respect. So subject matter is less important. I think the individuals themselves, I will say if I'm looking at a case with a significant potential damage, that would also give me a real variable on both sides, especially as the plaintiff, I would likely then push towards a jury. Conversely, if I'm the defendant, my desire to be in front of a jury where I'm facing high damages exposure just is oftentimes too great of a risk to force the issue if the other side hasn't demanded a jury. How about you? What do you consider?

Brad: Yeah, I think those are all good points. You know, I think credibility of witnesses, that's important. And maybe not even credibility, but just how a witness is going to come across. I know a lot of my cases involve high net worth individuals, very charged in emotional disputes over closely held businesses. Sometimes our witness, though as impassioned as they are, they don't really present well to a jury. So my experience, judges can kind of look beyond some of those factors and really kind of hone in on the story that the witness has to tell. I think the subject matter, you're absolutely right. What is a jury going to find interesting and what is a jury not going to find interesting. Subject matters, a lot of my practice, shareholder disputes, non-competes, those types of matters. We have a lot of the relief that we seek is equitable. So we're in front of a judge anyway. And from a cost perspective and from a scheduling perspective, oftentimes it just makes sense to schedule the entirety of the trial before a judge who can be sit both in a position to exercise its equitable powers, but also to make determinations, of facts and serve as the fact finder.

Adam: You know, Brad, you raise questions about equitable pieces, and fairness is a huge fact, which we oftentimes more think about from a jury perspective, but from a judge, how do you sell the case and how do you present it when you do have to come to the court and seek equity?

Brad: If I understand the question, Adam, I would say it's really no different than preparing for equity. For a presentation to a jury, going into a hearing, and we'll just use an injunction hearing, for example, in a non-compete case, the judge is going to be familiar with the legal standard that he or she needs to impose to afford our client the equitable relief or deny the equitable relief that's being sought against our client. So in terms of preparation, I go into cases like that, you know, assuming that the judge has some experience and has some knowledge and has been briefed on the applicable legal standard. I also like that in a proceeding like that, that especially when we're defending a case like that, that the judge isn't usually is not afraid to kind of impose herself or himself into the discussion. And recently here in state court in Pennsylvania, we were trying essentially an equitable case. It was a case to appoint a custodian to a closely held business. And in the judge, both kind of in our direct examinations, opposing counsel in my direct examination and on cross, the judge didn't hesitate to refocus the witness or to ask follow ups. I think judges are less comfortable doing that when there's a jury. So I think there's a certain efficiency that clients can take advantage of when we go in front of a judge and are trying something that doesn't involve a jury. So, Adam, we talked a little bit about the subject matter of cases that might afford themselves to a non-jury trial. Are there any cases that you can think of in recent history that you've been involved in or otherwise that, you know, really the subject matter is something that is best left to a judge?

Adam: I certainly think that closely held partnership disputes oftentimes fit best with judges. There's normally a lot of history between the parties. They've often worked closely together, sometimes well, sometimes not well. There's going to be a lot of history. There's going to be a lot of knowledge of both good and bad facts by both sides. I think the judge does a nice job of deciphering what is noise and what they need to know. Whereas when you put those types of business divorce cases or closely held business cases in front of a jury, sometimes it's hard for the jury to understand what really matters and what is just sort of the ongoing bad blood between the parties. What are your thoughts?

Brad: Right. I agree. Messy business divorces, cases where the theme of the case is rich people fighting over money or rich people problems, those types of subject matters, I prefer a judge. I mean, the judge oftentimes has been with the case for a little while, is familiar with the lawyers, the issues involved, the parties, which is often one of the challenges, you know, in these contentious business divorce type cases. They're emotionally charged, and I think the judge gets that. Adam, I want to switch gears a little bit and talk about preparing for a non-jury trial and an evidentiary proceeding. And be interested in hearing your thoughts on, is it simpler? Oftentimes the client asks the question, how can we streamline the case. Narrow the issues from a budgetary perspective? How can we make it a less expensive trial? Assuming those are all factors in play at the urging of the client, how do you prepare for a non-jury trial or an evidentiary proceeding differently than you would a jury trial, if you do at all?

Adam: I certainly will emphasize a trial brief far more in a non-jury trial. Rarely do I need them in a jury trial unless it's maybe a discrete evidentiary issue or something I want to give the court a heads up. However, in a judge trial, I'll take a lot of time on the pre-trial brief. I will set the stage. I find judges actually read them in pre-trial mode on a bench trial. So that's certainly one area that it's worth putting the time in so that the judge knows what he's actually going to be deciding. And I'm not even afraid to make it pretty clear in the pretrial brief what I want the judge to rule on, what I want the judge to consider in those circumstances. So that's one way, I think, to streamline the process. The other thing, and I actually just did this recently in a case, was for experts, I had the judge propose and the parties agreed that both experts would tender their written reports as their direct examination. They got on the stand. They affirmed the reports, just said these are true and accurate. They capture our opinions. Judge read the report beforehand, and then the other side went and crossed right from the jump. I thought it was great. It was basically a proffer, but the judge knew what was going on. The other side jumped in for the cross, and then I was able to re-exam my own expert, and then we flipped and did the same way with the other side. But I thought it was excellent. It limited the amount of time, the extra spend on having the experts spend all this time developing their expertise. Both experts were qualified. And so it was a really nice, efficient way to do it. Judge got it. I think everyone enjoyed it better in that respect. And other than just preparing the witnesses, I thought it was far more efficient, certainly less prep time with the expert in those circumstances. So I thought that was a nice little nugget that worked really well.

Brad: Yeah, I think that's a great idea. And I've been involved in some cases where the parties have stipulated to submit the deposition transcripts to the judge. And the judge can read them before the hearing, after the hearing, whenever, especially with third parties, maybe a minor witness for expedient sake, budgetary issues. Submitting what you can get in front of the judge without using trial time. I think that's a great idea.

Adam: Let me, Brad, tee up a different concept for you. So there's things you wouldn't do necessarily in your first 10 years in practice, but then as you get enough trials underway, you start looking at things you do differently. One example that comes to mind to me, nowadays, a few days into a bench trial, towards the end of the day, I'm not afraid to ask the judge and check the temperature, understand what the judge's questions are, things like that. I think a lot of people assume you can't ask the judge a thing, but unlike a jury, there's no reason you can't ask the judge. Judge may not necessarily give much information. He may, but I find that judges already question witnesses after you get done your direct and. Examinations of them, but I certainly am not afraid at the right time, and it has to be thoughtful to do it, but I'm certainly not afraid to check the judge's temperature because I'd much rather understand where they are or where they're unclear on within the first few days of trial rather than at the closing arguments. But I'll flip it back to you. Are there things you would do in a bench trial after the first 10 years that you wouldn't even have thought of doing in the first 10 years of practice?

Brad: I practice a lot in the state courts in Pennsylvania, and most of the larger counties have dedicated business courts or complex litigation courts. So I see the same few judges in each county on a regular basis. And to kind of to your point. I think that it is always beneficial to kind of reserve some time at the end of the day, including, obviously, including opposing counsel, where there is an off-the-record discussion with the judge, with counsel, in the courtroom, you know, parties can be there, or in chambers, where we kind of talk about the day, where we're heading, what's left in terms of witnesses to be presented. And I have found that when we invite the judge to kind of be involved in those discussions, we do get a sense of what it is that the judge is still looking for or what he or she may not want to hear. That happens oftentimes in shareholder disputes and business divorces where there's going to be valuation testimony. And both parties feel they have to put on their competing business valuation experts and your suggestion of submitting the reports, if that's not stipulated to before the hearing begins, maybe the day before the experts are going to testify, that's something that you bring up during that end-of-day discussion with the judge. And I don't know what your experience is, but mine is usually in those end-of-day discussions, you do get something out of the judge in terms of where he or she might be leaning. I mean, whether to kind of facilitate a settlement discussion or a standstill agreement, depending on what the issue is, but I don't think I would have had the guts to bring up to the judge, hey, can we stick around for a few minutes at the end of the day and kind of evaluate where we are? I don't think I would have had the guts to do that earlier in my career, but today it's kind of commonplace, and that's something that I kind of built into my plan for the day.

Adam: Brad, I've got another thought on my mind I want to get your feedback on. I've had... Bench trials go several ways towards the ends. Sometimes you present all the evidence, the judge says, thanks, and I'll let you know. I'll take it under advisement. But more often than not, I typically hope and try to get a live closing where the judge effectively acts somewhat like on a board of appeals where they're going to have it be a live closing back and forth, rapid fire, all those things tells me where my case is. That's certainly my preference there. But either way, the question is, if the judge does give you the opportunity to do a statement of facts afterwards, fines of facts and conclusions of law, what are you looking for from the judge at that final closing argument? What are you trying to get out of the judge to understand where you need to get the judge to be comfortable with your position at the end of that and how you make the fines of facts and conclusions of law fit to where the judge you believe is heading and you want to get them to the same position?

Brad: So that's interesting, Adam. I'm probably the reverse. I tend not to want to have a close in court or a closing. I think the judges heard the evidence, and I think I can be a lot more deliberate and specific in proposing findings of fact and conclusions of law. So in terms of kind of... And heading the judge in the right direction, I mean, the facts are what the facts are, and the evidence will be what the evidence is. But, you know, I like a post-trial or post-hearing brief for proposed findings, because that, you know, that's where the advocacy is. And, you know, you're fresh, you've got a new set of eyes, you know, if you want to tap somebody who wasn't involved in the hearing to read the proposed findings or the post-hearing brief, you have the opportunity to research any issues that, you know, may have come up during the hearing. And really, you're usually exhausted from two or three, four very busy, long days of examining witnesses and dealing with your client and what other trial issues. So I like the submission of findings of facts and conclusions of law. And oftentimes in submitting them or talking about the schedule, the judge will be open to setting a kind of post-hearing argument or status conference once those get submitted, where it kind of acts as a de facto closing. But during that argument or that conference you can really focus the judge kind of on where you think the high points of your case were that you put in.

Adam: Do you do any type of mock trial work when you've got a bench trial? Obviously it's not a jury trial but do you do any equivalent knowing you've got a judge as your decider rather than a jury?

Brad: I don't do a full mock hearing but I will, just like a jury trial, I will work with my critical witnesses. I will over-prepare them, especially those who I know may not come off as great to a judge. Not necessarily from a credibility perspective, but just their personality, their demeanor. And I do spend a lot of time with that. Because the last thing you want is, you know, a witness, you know, coming to court and they know there's not going to be a jury there. And, you know, they think they might analogize it to their deposition. And, you know, that's a big thing for me is I let them know that, you know, we're going to be talking about a lot of the same stuff we talked about in your deposition. I'll be asking most of the questions on direct, but this is a lot more formal. You know, the judge is going to be paying attention to what you say and what you don't say. The judge can ask you questions. So, yeah. I don't necessarily go through a complete mock hearing, but I do go through kind of a mock examination, usually several times.

Adam: Yeah, as far as prep, do you ever bring in any other folks to mock cross witnesses on your side? How do you try to give them a realistic experience while at the same time not over-preparing them?

Brad: I'm a big advocate of getting our associates involved in cases, especially that involve courtroom appearances, witness prep. Real live practice scenarios. So when I'm preparing a witness, it's usually it's myself and the associate, sometimes partner, and we do play those roles. And it helps me as the examining lawyer, too, hearing kind of the cross. I mean, you've heard it in the deposition likely, but it's helpful to kind of stay away from a line of questioning that you otherwise were going to go down. What about you in terms of preparations involving other lawyers or going through a mock hearing?

Adam: From my perspective, always going to have to do live fire. I think no matter how good the witness is in previous experience or in depositions, I'm absolutely going to cross them and mock cross them multiple times unless for some reason schedule doesn't allow it. I will say one thing I've done more recently just from learning the hard way is I have certainly started crossing my professional witnesses. Experts, things like that, far more than before. Oftentimes they go later in the case. I assume that they've got a good cadence because they've testified so many times, but then I get them up there and I'm somewhat displeased with their presentation. And it's just, I think, a reality of them not actually practicing and they've learned habits from other lawyers, things like that, that I don't necessarily agree with. So I've actually spent more time prepping with some of my professional experts, things like that, make sure that we're all aligned about how I want them to proceed on cross when they're being crossed by the other side and what I think ultimately creates the most effective advocacy. So I think live fire for all witnesses is great, but I wouldn't lose sight of the fact that sometimes your professional witnesses are the ones that actually need the most amount of work before you put them in that environment.

Brad: Yeah, that's absolutely a great piece of advice. Here in state court in Pennsylvania, we don't, as of right, have the right to take a deposition of an expert witness. So oftentimes, the only interaction that your expert has with the court or your opposing counsel is their report. And I think it can be taken for granted that your expert is going to come. You will have obviously met with the expert, but making sure he or she is comfortable in a cross-examination situation. Because I've come across, actually, it was a recent restrictive covenant non-compete case where my forensic computer guy, it wasn't my usual guy, my usual expert. He was referred, actually, by the client. The client wanted to use him and his firm. They'd worked with his firm in the past. But I was surprised as we're preparing for the hearing, he hadn't testified a whole lot, and he hadn't testified in a hearing scenario, but rather in a deposition before. So that goes to preparation, and to your point, kind of the practice examination, especially on cross, is helpful.

Adam: You know, I will share two other thoughts on that cross piece just because it's top of mind. One, I recently had a case where we have been dealing with a fee award where we've received the right to get our fees. So we actually had a hearing on that. And that was actually my first time as the partner in charge. I was a testifying witness and I had to defend the reasonableness of our fees. So I got to experience Live Fire Cross through that process. It was a tremendous learning experience because it was certainly... One of those things where it's one of those things to teach. It's another thing to do. So it was interesting to see if I could hold true to my various rules about cross, which I think I did a decent job, but also see some of just even the funkiness of ingesting questions from the. Lawyer asking questions, turning your head to look at the judge, all the things we tell people to do, but actually have to do them yourself. So it was a nice little interesting experience just to be able to do it yourself. The other thing I'll just leave on that piece is sometimes I'm having a difficult witness who's not understanding how to be crossed appropriately, how to be narrow in their answers, why it's better not to fight everything. Sometimes I make them cross me in a mock way so that they can see what it's like and experience it. And sometimes I'll just put myself in their seats and try to demonstrate how I believe a nice narrow examination goes from the witness's side, acknowledging, admit, deny, trying to be very narrow in what you say as the witness when you're on the stand and how oftentimes that's so much better than trying to explain away things and trying to do too much when it's much more effective just to admit, deny, I can't recall, if you can't recall, and kind of do it that way. So all in, I think some of those things are really helpful to sometimes put yourself in the shoes of the people that are actually having to testify So they get to experience that along the way.

Brad: Yeah, that's great. Great, Adam. Well, I think that that's all the time that we've got for today. Thanks, everyone, for joining us. Stay tuned for our next episode of Disputes and Perspectives. Music.

Outro: Disputes in Perspective is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's litigation and dispute resolution practice, please email disputesinperspective@reedsmith.com. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. 

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