I recently wrapped up a series of hard-fought cases centering around restrictive covenant violations and trade secret misappropriation. In the draw-down that follows, I always find it helpful to take some time to reflect on lessons learned—both for my client and for improving my approach in subsequent cases.

In future cases, I’m going to take a harder look at whether to ask for a jury trial in a standard employee departure case when I represent the plaintiff. When you represent the plaintiff, the natural tendency is to want a jury. The standard misappropriation story can be gripping and morally intuitive; the normal citizen has a general sense that a person should adhere to agreements they made and should not steal property or propriety information. Doubly so when the departing employee has taken steps to mislead the employer about their future activities.

But consider the odds a jury will ever hear about your case. Since January 1, 2011, 13,192 trade secrets cases have been filed in federal courts, according to Lex Machina:

Of the 11,343 closed cases, a mere 209 have made it to a jury verdict—a rate of 0.018%. The percentage does not materially change if the case population is limited only to cases where the court entered an order on some form of injunctive relief (either a temporary restraining order or preliminary injunction). Even with those additional parameters, the jury verdict rate barely ticks up to 0.025%. With such a miniscule likelihood of reaching a jury, it’s worth considering the tactical benefit of a jury demand versus a bench trial.

Good reasons exist to stick with a bench trial in a standard employee departure cases. The “routine” trade secrets cases I work on involve the unauthorized retention or misappropriation of information by a departing employee, which might be coupled with restrictive covenant claims. The objective in those cases is often to recover the information, restrain any further violations, then shut down the litigation to minimize spend and business impact. In many cases, there may be just a few days or weeks between the employee’s departure and filing the lawsuit. In some scenarios, that may not be enough time to do any real damage in terms of lost profits, so the real value in the litigation in those circumstances is primarily (1) obtaining injunctive relief and (2) recovering attorneys’ fees.[1]

In those cases, foregoing a jury demand might make sense. Doing so allows the presiding judge to make determinative findings of fact in the course of deciding requests for preliminary injunctive or equitable relief. In cases where you file for a temporary restraining order, you may also get a sense for the presiding judge’s perception of the facts. If the judge grants an expansive TRO, it seems odd to inhibit that judge from making factual findings in the case. Moreover, a number of judges will not allow motions for summary judgment in bench trials, so declining to pursue a jury trial may defang the defense of its biggest weapon if the case progresses. And now, with a significant backlog of criminal matters and civil jury trials due to the COVID-19 pandemic, opting for a bench trial may also result in a quicker trial setting without the risk of a last-minute continuance.

Of course, this decision isn’t entirely within your control. Even if you decline to demand a jury trial, the opposing party may file a jury trial demand. I’ll be interested to see if that occurs in subsequent cases where we don’t request a jury trial, as the vast majority of plaintiffs include a jury demand in the complaint.