Medical Malpractice Trial Types

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Understanding the Litigation Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

There are two types of trials, trial by jury and trial by judge. It is the task of the judge to determine the law, while the jury determines the facts.  In a trial by judge—called a “bench” trial—the judge determines both the law and the facts.  The U.S. Constitution guarantees a trial by jury.  If a party does not request a jury trial, however, the right to a jury trial can be waived.

The Statistics

Most civil cases in the United States are tried by jury.  Of the 3 percent of all cases that go to trial, the Department of Justice reports about two-thirds are jury trials, and one-third are bench trials. Whether to try a case to the judge or to a jury is strictly a matter of choice by the litigants.  If either party timely requests a jury trial, however, the case must be tried to a jury.  Because of the constitutional implications, in most cases both parties must waive their right to a jury trial in order for the case to be tried to a judge.  In a few instances, such as trials for injunctions and family law matters, a jury trial is not an option and a judge must hear the case.  However, the majority of civil issues offer the litigants a choice between bench or jury trials.

Notions and Perceptions

So why would anyone choose to have a case heard by a judge as opposed to a jury, or vice versa?  The reasons are mainly based on preconceived notions about judge and juror biases.  Generally, most litigants favor a jury over a judge because the decision is put into the hands of many rather than in the hands of one.  Plaintiffs usually like juries because lay individuals are believed to be more sympathetic, and a plaintiff can appeal to the emotions of a jury.  Conversely, defendants usually prefer bench trials because a judge is thought to be more objective in deciding a case.  Requesting a bench trial can also result in a much quicker trial date.  Since court dockets in most large cities are becoming increasingly congested, the time difference between a jury trial date and a bench trial date can be literally years.


None of the perceptions about the benefits of a jury trial or a bench trial apply to all situations—every case is different.  There is at least some empirical evidence that some of the commonly held conceptions about bench and jury trials are actually misconceptions.  For example, while it is almost universally believed that juries tend to favor plaintiffs and award much higher monetary amounts, a recent study by the Department of Justice suggests that judges favor plaintiffs and return higher verdicts.  Still, jury trials outnumber bench trials by about two to one [1].


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[1] See Civil Jury Cases and Verdicts in Large Counties, Civil Justice Survey of State Courts at:

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