Knowing Your Audience

by Brooksie Bonvillain Boutet

 

Three Proceedings in Three Months: a Jury Trial, a Bench Trial, and an Arbitration

 
Texas Bar Today TopTen BadgeBeing an effective advocate is as much about knowing your audience as it is about knowing the law. In a span of three months, I tried a civil jury trial, presented a bench trial, and submitted a case to arbitration. The preparation and presentation of each case were different—not only because of the facts, but because of the different procedures and audiences in each forum.
 
As a threshold matter, learning the general procedure involved in each proceeding is the first step. Although the order of each proceeding is largely the same, a jury trial, a bench trial, and an arbitration each have slight differences.
 
Next, who are you trying to convince? Conducting ample research on the judge or arbitrator is crucial to your success. Some may have unique procedures. Perhaps most challenging—if you are presenting the case to a jury, you must prepare effective questions to get to know the potential jurors in a brief amount of time, then select the best jurors for your case during voir dire. In a jury trial, you are arguing to a group of twelve individuals with different backgrounds, vastly different life experiences, and no legal training. A clever argument that may engage a jury might be met with skepticism from a seasoned judge.
 
Preparing your witnesses also differs in each proceeding. In a jury trial, opposing counsel is much more likely to object to certain questions that may inflame a jury and will be ready to object on a moment’s notice. However, in a bench trial or arbitration, you may have more flexibility to ask questions that a judge or arbitrator will have the experience to filter.
 
The same can be said for exhibits. If a jury will be present, the lawyers arguing the case are careful about which exhibits are presented during trial. If a damaging document may be outcome determinative of the entire case, it will be a hard-fought battle to keep it from the jury through a motion in limine.
 
The level of formality can also vary drastically. A jury trial is formal, while a bench trial and an arbitration may be quite more relaxed based on the judge or arbitrator’s preferences. Why? The jury must be shielded from certain parts of the proceeding. A matter that can only be addressed outside the presence of the jury will require pausing the proceeding to excuse the jury. When a jury is not involved, all matters can be addressed more seamlessly.
 
Perhaps one of the biggest differences is that arbitration is generally mandatory and binding. Mandatory, meaning the only choice is to resolve the case through arbitration. Binding, meaning there is no appeal. The arbitrator’s decision is final. This finality removes the need to protect the record for appeal as you would in a trial subject to appeal. You may even need to consult with appellate counsel prior to trial in complex cases that are likely to be appealed.
 
It was satisfying to secure three client victories through three different means of resolution. Knowing your audience helps you prepare the best possible case—and obtain the best possible outcome—for your client. From your first day on the case, know what ultimate method of resolution will be available to your client so you can strategically develop the case, step-by-step, with the end goal in mind.