If you’ve never been in a probate courtroom, you might expect to walk in and see a judge sitting on a raised dais wearing a black rob. In real life (at least in Miami-Dade and Broward County Florida) your average probate courtroom is a good-sized office (otherwise known as the judge’s “chambers”) with everyone – including the judge – wearing a business suit and sitting around a long rectangular conference-room table. Which doesn’t mean the quality of the process is diminished, it’s just not what you’re used to seeing on TV.

Bench Trials: Good Advice for Lawyers

It’s also a fact of life that non-jury bench trials rarely get much attention in professional journals (and forget about the popular press). So I was happy to see an excellent piece in the August 2009 edition of the ABA Journal discussing the virtues of bench trials, which was also packed with good advice for lawyers involved in bench trials: When the Judge Is the Jury.

“It is essential for the only juror in the case—as well as everyone else—to actually watch an honest witness testify on direct and a dishonest one squirm during a powerful cross,” said Standwell.

“The best way to do that is to hold the trial in a good-size conference room around a large, oval table. Every­thing—from oral testimony to handling electronic demonstrative evidence—is easier. What’s more, everybody sees everybody else through the whole trial.

“And one of the biggest advantages over the traditional courtroom is that the lawyers get to ‘read the jury’ all through the case. And since the judge can—and often will—ask questions, you’re always aware of what’s on the jury’s mind,” said Standwell.

“The conference room setting also helps you be a better cross-examiner,” said Angus. “You’re not strutting around and posturing in front of an audience of 12 jurors, trying out those nasty bits of sarcasm on the wit­ness. You’re doing what you ought to do on cross-exam—telling ‘the rest of the story,’ what was left out of direct—with short, leading questions that give the wit­ness no wiggle room for evasive or misleading answers.”

“Another thing,” said Standwell. “The conference room setting also has an important effect on the dynamics of expert testimony.”

“Even with world-famous scientists, economists, doctors and physicists, modern formal courtroom practice often turns the most fascinating expert testimony into sesquipedalian tergiversation,” said the judge. (Later, my 15-year-old daughter told me this means “incomprehensible, evasive large words.”)

“For my money,” said Standwell, “the more you can get your experts to explain economics, physics and medicine in plain English—the way the late Carl Sagan made simple sense out of intergalactic space—the better you will serve your case.

“The formal pageantry of 12 jurors, the clerks, bailiffs and court reporters, two or three sets of lawyers and a black-robed judge drives most experts back to the safety of the home cave—which for them is the world of incomprehensible jargon.

“A judge wearing a business suit instead of a robe in a conference room with everyone seated around an oval table goes a long way to make the whole process more human.