testing the waters

I had a trial today. (Actually, my client had a trial. I just orchestrated the defense.) I decided to do a bench trial. With some judges, I agonize over whether to do a bench or jury trial. I go to each of my more experienced colleagues' offices, give them the short version of the facts and ask what they would do. One guy always says, "Bring me twelve!" unless there is an obvious reason to bench (like the judge already told me "this isn't a kidnapping").

The case up for today was in front of a relatively new judge, a former prosecutor who had been at the civil court for a while. My office doesn't have much experience with him. Because the case today was a low level felony (carrying concealed weapon), I felt the unspoken pressure that it is impolite to demand a jury when the worst that will happen to the client is probation (and a felony record, of course). I don't want to be known as a pain in the ass for unnecessary reasons.

One colleague said I should bench just to see what this judge is like for bench trials. That makes sense for the office, but not for the client. I wanted to do what was best for him (he said I could make the decision). I don't think it is fair to use him as a guinea pig. (Though, all clients at the beginning of a trial lawyer's career are guinea pigs. A judge kindly told me when I started that all practice in the first five years of trial practice is malpractice.)

Anyway, I benched and the judge found the guy not guilty. I was sure he was going to find my client guilty until he got to the last two sentences of his ruling. So, the lesson is that the office can trust this judge with bench trials. Of course, judges know that if the defender office decides it can't trust them with bench trials, their dockets are going to get jammed with jury trials. I think that played a part in the case today.