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The “Trier of Fact” – Some Basic Realities of Our System

Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.

Having just completed another long jury trial, my thoughts naturally return to basic questions on the nature of our system. The definition of who is the “trier of fact” in our cases has important implications for any litigation matter, but particularly in complex construction litigation. The nature of the process defines why practicing law is far more of an art than a science.

What does the “Trier of Fact” Mean?

Appellate courts call the person or people deciding the facts of the case at the trial court level the “trier of fact”. In jury trials, the jury would be the trier of fact. In a bench trial, the judge would be the trier of fact as the judge is making those decisions. In some instances, you may even have a different trier of fact. For example, in Virginia, the Court often appoints “Commissioners in Chancery” who engage in fact finding and determinations to evaluate cases for the court. In those cases, the commissioner may be the trier of fact in some instances.

Civil Juries – The Magic Number

My practice is primarily in the Commonwealth of Virginia. In Virginia, we use twelve person juries for criminal trials. Civil trials only use seven jurors. Jury verdicts in both cases must be unanimous.

In contrast, other states permit a civil jury to render a verdict when the jury is not unanimous. For example, in California, only three-quarters of the jury need to agree upon the verdict in a civil case. Various other states, like Texas for example, have similar rules regarding the precise majority threshold that must be reached to achieve a verdict.

Who is the Trier of Fact?

When a client first comes in my office, I generally have a long heart to heart conversation with them regarding the inherent lack of predictability of our system. My client will explain their story, and then ask the magic question, “That is what happened. How could I ever lose this case?” I have to then explain the reality of trials.

The truth is no lawyer can guarantee a result in any case. There is no way to predict exactly what the trier of fact will be thinking and reacting to. As lawyers, we make educated evaluations based on our own reaction to the evidence, credibility of the witnesses, and the strengths and weaknesses of each side. We cannot guarantee that others will view things the same way.
Juries are called randomly to sit and hear their cases. They come preloaded with their own set of assumptions, biases, strengths and weaknesses. These biases may work towards or against your specific client, and there is little or no way to predict beforehand.

Judges are no less human than juries. Judges come with the possible advantage of having heard many previous witnesses and thus may be a better judge of character and credibility. They also may come with greater preloaded biases and presumptions given their longstanding role in the litigation process.

Lest we splash the entire trial process with criticism in favor of arbitration, we need to keep in mind that regardless of who the trier of fact is, they are human. Thus, arbitrators also come with their own preloaded set of biases and assumptions that also make them imperfect triers of fact. In theory, arbitrations may permit a better educated trier of fact to analyze and evaluate a case. Just as with judges, however, that greater facility with a specific subject matter may in fact result in greater biases that directly bear on a specific case.

Applying Reality

We cannot predict who will decide our cases or their biases and assumptions. This inherent reality of our system injects a great deal of unpredictability into the litigation process. This lack of predictability raises two important points. First, you should not get frustrated if your lawyer is hedging their analysis of the certainty of your victory (or loss for that matter!). Second, be very wary of any lawyer who appears too certain and definite about the results of any trial. Confidence in one’s position may be highly persuasive to the ultimate trier of fact, but blindness to the inherent unpredictability of litigation may end up fatal to your case.