Trial Without a Jury

A federal civil jury exists only when the law supplies the right and a party claims it. Rule 38(b) governs the claiming: a party must serve the other parties with a written demand no later than 14 days after the last pleading directed to the issue is served, and must file the demand in accordance with Rule 5(d).¹ When no right exists to claim, or when no one claims it, the judge tries the issue. This section follows that outcome through three questions: how a case reaches a bench trial, what the judge does there and how a reviewing court treats the work, and how the advisory jury and the consent jury soften the choice between jury and judge. Because entitlement runs issue by issue, one lawsuit can split, with jurors deciding the legal issues and the judge deciding the rest. A bench trial therefore often describes part of a case rather than all of it.

Three Routes to a Bench Trial

Every bench trial traces to one of three causes: the jury right never existed, every party waived it, or no disputed fact remained for a jury to decide. The first two answer the questions this reading has kept apart from the start, whether a right exists and whether anyone properly claimed it.

The first route is the missing right. In general, no jury right attaches to claims that historically were equitable, such as actions for an injunction or specific performance, while actions that historically were legal, such as money damages in tort or contract, carry one. For a cause of action unknown at common law, the courts look to the nearest historical analogy and characterize the remedy sought.² Other gaps arise as well: the defendant may be the United States without a consent to jury trial, or the claim may be an admiralty claim designated under Rule 9(h). A demand cannot repair any of these gaps, because it claims only a right that already exists. A party who serves a flawless demand on an injunction-only claim still receives a bench trial.

The second route is waiver. Where the right exists, every party loses it by never serving a written demand, by serving it late, or by serving it and never filing it.³ The court retains discretion, on motion, to order a jury despite the waiver, as the earlier discussion of Rule 39(b) explained. Absent that order, the judge tries the case.

The third route needs neither a waiver nor a missing right. A jury exists to resolve disputed facts, so when none remains to be tried, jurors have nothing to do, whatever any demand says. In Parklane Hosiery Co. v. Shore, a class of shareholders sued a company and some of its officers and directors for damages over false proxy statements. The Securities and Exchange Commission had already won a declaratory judgment against the same defendants in a separate action tried without a jury. The Supreme Court held the defendants precluded from relitigating the issues they had lost, and it rejected their argument that preclusion cost them a jury on those issues.⁴ Procedural devices developed since 1791, among them the broadened doctrine of issue preclusion, have narrowed the occasions for a jury and have been held consistent with the Seventh Amendment. Waiver loses a jury through a party's own omission; preclusion removes the need for one by settling the fact question before trial.

An exam stem that describes a damages suit on a contract invites the answer that a jury will find the facts, because the claim is legal. That answer stays incomplete until the facts show whether anyone demanded a jury.

The Judge as Factfinder

When no jury sits, the trial judge serves as both the finder of fact and the decider of law.⁶ A jury trial divides those jobs: jurors resolve the disputed facts and return a verdict, and the judge supplies the law. A bench trial places both jobs in one person. Rule 52 therefore requires the court to find the facts specially and to state its conclusions of law separately, so the judge must set out the facts with particularity and then state, in a separate part of the opinion, the law that applies to them.⁷

The requirement exists because a bench trial produces no verdict and no jury instructions to review. A bare ruling for one side would leave the loser and the appellate court unable to tell which version of events the judge accepted or which legal rule the judge applied to it. Written findings supply the record of how the facts were found. Keeping them apart from the conclusions of law lets a reviewing court see whether a challenged ruling rests on a judgment about the evidence or on a view of the law.

Review of the findings is deferential. In the federal system, an appellate court will set aside a trial judge's findings of fact only if they are clearly erroneous, and it is reluctant to second-guess them.⁸ The trial judge watched the witnesses testify and weighed their credibility firsthand, while the appellate court reads a transcript. If the appellate court re-weighed the evidence in every appeal, the bench trial would become a rehearsal for a second one.

On any issue a jury decides, the verdict does the work that the judge's findings do in a bench trial, and the judge does not find the facts on that issue.

The picture of a case tried either wholly by a jury or wholly by a judge has two exceptions. A court may, if it wishes, submit an issue to an advisory jury on its own initiative, but that jury's verdict is advisory only, and the ultimate responsibility for finding the facts remains with the court.¹⁰ In an action not triable to a jury as of right, the court may also, with the consent of both parties, order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.¹¹

The two devices differ in who controls the outcome, and the reason lies in where a jury's binding power comes from. A party with no jury right cannot compel a binding verdict. A judge who consults jurors on the judge's own initiative therefore gains a lay reaction while giving up nothing, because the verdict binds no one. A binding verdict where no right exists needs something to supply the authority, and the agreement of both parties does so, because they have chosen lay factfinders in place of the judge. For that reason, one party's demand on an equitable claim produces neither device. It creates no right and supplies no consent from the other side.