One of the most important decisions that counsel and their clients must make in many cases is whether to have a trial by jury or a trial by judge (commonly called a bench trial). Although bench trials can offer certain advantages over jury trials, including greater efficiency and flexibility, counsel should be aware of the practical and procedural nuances of a bench trial before choosing this option. Counsel should also understand the circumstances under which a bench trial might be available, even when a party has demanded a jury trial.

In most federal civil cases, parties can choose between a bench trial or a jury trial. Although juries figure prominently in depictions of trials in popular culture and in the public imagination, bench trials are more common in federal court and are typically the preferred option in civil cases for courts and counsel alike.

Courts and counsel often have this preference because bench trials can be more efficient and easier to navigate than jury trials, in part because the judge both acts as the finder of fact and rules on matters of law and procedure. However, because of the significant impact the choice of a bench trial may have on the procedures and outcome of the case, counsel must carefully analyze various factors before deciding whether to forgo a jury trial.

This article explores:

  • The circumstances in which a bench trial is available.
  • The potential advantages of a bench trial over a jury trial.
  • The differences in case management and discovery in a case set for a bench trial compared to a jury trial.
  • Common procedures that courts use before and during a bench trial.
  • The applicable standards of review when appealing bench trial decisions and judgments.


Depending on the applicable law and jurisdiction, a bench trial may be automatic in certain cases, especially where the case entails equitable claims for which no right to a jury trial exists (for example, Federal Rule of Civil Procedure (FRCP) 38(e) (stating that there is no right to a jury trial for federal admiralty or maritime claims); see also Cavender v. Nat'l Coll. of Naprapathic Med. (In re Cavender), 2017 WL 8218841, at *11 (Bankr. N.D. Ill. Nov. 27, 2017) (finding that there was no right to a jury trial for a claim of non-dischargeability in bankruptcy); FDIC v. Sextant Dev. Corp., 142 F.R.D. 55, 58 (D. Conn. 1992) (finding that there was no right to a jury trial in a foreclosure proceeding)).

Even on claims for which a right to a jury trial exists, the parties in a federal case may elect to have a judge try the case instead. For example, parties may agree to waive a jury trial before any dispute arises. If the case is later litigated in a jurisdiction where pre-dispute jury waivers are valid, the court will likely uphold the parties' agreement and conduct a bench trial (see, for example, In re Cty. of Orange, 784 F.3d 520, 528-29 (9th Cir. 2015) (noting that unlike most other jurisdictions, pre-dispute contractual jury waivers are generally invalid under California and Georgia law unless authorized by statute)).

Aside from enforceable, contractual jury waivers, a bench trial may be available in a federal case on issues otherwise triable by a jury where:

  • No party properly demanded a jury trial.
  • One or more parties made a proper jury trial demand, but the parties subsequently consented to a bench trial in writing or on the record during the litigation.
  • A court finds that no federal right to a jury trial exists on some or all of the issues for which a jury trial demand was made.


Depending on the jurisdiction and applicable law, a party may have an automatic right to a jury trial on certain claims in federal court. However, a party still must properly demand a jury trial in most cases. If a party does not demand a jury trial at all, or does not timely and properly serve and file a written jury trial demand, a bench trial will likely result, with rare exceptions. Parties who desire a jury trial should therefore demand one early on in a case.

FRCP 38 permits a jury trial on some or all factual issues triable by a jury, but only if a party both:

  • Serves the other parties with a written demand for a jury trial no later than 14 days after service of the last pleading "directed to the issue" for which a jury trial is sought.
  • Properly files the written demand under FRCP 5(d).

Parties may make the jury trial demand separately or include it in a pleading (FRCP 38(b)). In practice, a plaintiff who desires a jury trial typically makes its demand in the complaint, while a defendant typically demands a jury trial in its answer or counterclaims. However, either party can demand a jury trial in a separate document if the demand is properly served and filed within the appropriate timeframe.

Although a jury trial demand need not specify the factual issues for which a jury trial is requested, if a party has specified only certain issues in its jury trial demand, any other party may serve a written demand for a jury trial on the remaining issues (if those issues are triable by a jury) within either:

  • 14 days from service of the initial jury trial demand.
  • A shorter time that the court may set. (FRCP 38(c).)

The failure to properly (and timely) serve and file a written jury trial demand generally waives the right to a jury trial (FRCP 38(d)). However, a party may file a motion for a jury trial later in the case on any issue for which the party could have demanded a jury trial. A court has discretion to grant or deny this type of motion (FRCP 39(b); see, for example, Winter Enters., LLC v. W. Bend Mut. Ins. Co., 2018 WL 1522119, at *5-6 (S.D. Ohio Mar. 28, 2018); Fidelity & Deposit Co. of Md. v. A-MAC Sales & Builders Co., 2006 WL 3802180, at *1-3 (E.D. Mich. Dec. 21, 2006)). A party that is uncertain at the preliminary stages of a case about whether a jury or bench trial would be appropriate should consider demanding a jury trial to avoid waiving the right, but only if it believes the other parties would be amenable to stipulating to a bench trial at a later date if a bench trial becomes preferable.

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