Recent articles written about COVID-19's effect on litigation all seem to have the same refrain: The logistics of impaneling a jury are daunting and jury trials may not be able to resume until 2021. As the backlog of cases build, we write to start a dialogue and suggest that trial lawyers and trial judges, both of whom are understandably concerned about timely case resolution, need to give more thought and consideration to bench trials.

As former trial lawyers and now trial judges, we have heard and considered the hesitations raised about a bench trial. These range from: "I don't know the judge's leanings and therefore I am uncomfortable placing the verdict in the judge's hands;" it "depends on the judge;" is the judge "prosecution or defense oriented" or the "plaintiffs or defense oriented." Plaintiffs lawyers may understandably feel that they will be better able to emotionally sway a jury than a judge to return a higher pain and suffering verdict. All trial lawyers, both criminal and civil, may properly believe that the prospect of a firm trial date to pick a jury will help to induce a plea or settlement. Finally, judges may not want the additional responsibility of making credibility determinations and finding facts, tasks traditionally left to juries.

All of these concerns about the bench trial are valid. But in the trial world that will be our immediate future once courts fully open, an important question that now needs to be asked is whether the advantages of a jury trial, as opposed to a bench trial, outweigh the delay and additional burdens that the pandemic will undoubtedly cause in resolving disputes. This question is particularly pertinent for civil litigators because criminal cases will likely have to be prioritized, at least for the foreseeable future.

Not too long ago, in some jurisdictions, the bench trial was preferred over the jury trial. In the early '80s, 56% of all federal trials were resolved with the judge being the fact finder. By 2016 that number had changed: 71% of federal trials were to a jury (Nora Freeman Engstrom, "The Diminished Trial," 86 Fdm. L. Rev. 2131, 2137 (2018)). We do not offer an explanation as to why those percentages have changed—that is not the point of this article. Instead, we hope to start a fresh discussion about case resolution through a bench trial.

In pondering the subject, we note the following realities: First, presently recommended safety measures are in many ways incompatible with jury selection and the jury trial, as historically practiced. On a typical jury selection day in our court, the U.S. District Court for the Eastern District of Pennsylvania, approximately 120-150 persons from nine different counties are asked to come together in one jury assembly room to be randomly selected for courtrooms needing a jury panel. Once a panel is selected, depending on the case, 30-50 persons are then asked to sit together, in a courtroom, for voir dire. The end result of this process is that eight to 12 jurors (excluding alternates) sit side by side, sometimes for weeks or months, and then, during breaks and deliberations, gather together in a small jury room. While court administrators are expending considerable time and energy thinking through how to make all of this work in a pandemic, the logistics are daunting. Overcoming these problems will likely involve injecting more space and time into the process. Space and time are realities that typically cannot be solved by judicial fiat. They are hard to solve and tend to cost a lot of public money—funds that may be in short supply given the enormous toll the pandemic has taken on the economy.

A second reality: The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy trial by an impartial jury. This edict is codified in both state and federal speedy trial statutes. Many defendants awaiting trial are presently incarcerated. So while we do not speak for any other judge, or our court, our view is that once courtrooms are cleared for jury trials, criminal jury trials must—and will—take precedence over civil jury trials. In reality, criminal jury trials have always been given priority, but the effects of the pandemic will only exacerbate this dynamic. For clients and civil practitioners who rightfully desire efficient resolution of their case, the need for judges to prioritize criminal jury trials does not bode well for expeditious civil jury trials.

A third reality: Jurors are often reluctant to serve under the best of circumstances. Courts have to spend a lot of effort to ensure impartial and representative jury panels. We will not know the full effect of the pandemic on juror service until the courts begin to again draft jury panels, but the present situation is concerning. Jury pools and jury trials are exactly the kind of closed space, long-term gatherings that have been "ground zero" for the spread of infection. Whatever safety measures are taken—and we have no doubt that the measures in our court will be the best available—potential jurors will have to be convinced they will be safe when they respond to a summons to serve as a juror. There may be a significant lag in public confidence over the safety of jury service that will have to be overcome by solid data and responsible public education. All of this takes time.

Shifting more trials to the judge as the fact finder could remove many of the complicated obstacles that a jury trial poses in a time of a pandemic. First, a bench trial eliminates the close contact of a large number of persons needed for the jury trial. As long as witnesses, lawyers and court staff can be properly distanced, bench trials can be scheduled and actually completed.

And most bench trials are more efficient than jury trials. Jury selection and instructions on the law are not needed, lengthy jury deliberations are eliminated and lawyers' openings and closing arguments can be shorter and more succinct. And dare we suggest that in a simpler civil matter, it is possible that openings or closings may not be needed at all.

There are other advantages to a bench trial. Depending on the case, more stipulations can be worked out and inadmissible or inflammatory evidence mistakenly admitted can be ignored and curative instructions can be avoided. Video depositions that juries must view in a courtroom in the course of a jury trial can be viewed by the judge in chambers, after the completion of the necessary testimony.

As for verdicts, in many cases they can delivered by the judge from the bench shortly after testimony is concluded. Judges can explain how they reached their verdicts, so that lawyers and litigants can have a greater understanding of the deliberative process. A judge can also plainly state which witnesses he found credible or incredible. Trial lawyers rarely get such feedback from a jury verdict.

These judicial verdict explanations can help to improve the prospects of settlement. Juries, of course, are never allowed to explain their verdicts unless post-verdict juror interviews are allowed. And in our experience, these interviews are sometimes less than candid and can be more harmful than helpful. To the extent that trial error is alleged, those claims can be dealt with through the typical method of post-verdict motions. With bench trials, firm trial dates can still be set, albeit sooner than with a jury trial, and lawyers can still be attached for trial. Thus the bench trial can continue to serve the twin purposes of certainty and finality, both of which induce settlements.

And finally, cases are routinely and justly resolved through arbitration. While the bench trial is more formal than the arbitration process, those two methods of dispute resolution are really not that dissimilar.

As former trial lawyers who have tried numerous civil and criminal bench and jury trials, we fully understand that often a diverse group of citizens are preferred to one judge. But the dispute resolution world we live in today is a much different place than it was four months ago. The traditional means of resolving disputes must be rethought. Cases, clients and judges are different and not all cases are a good fit for the bench trial. But given the inevitable backlog that the judicial system now faces, maybe it is time to consider the more efficient method of resolving disputes though bench trials.

U.S. District Judge Mitchell S. Goldberg serves on the U.S. District Court for the Eastern District of Pennsylvania and Judge Richard Lloret is a federal magistrate judge in the same court.