Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process

28 Pages Posted: 6 Sep 2006


The paradigm American "single event trial" was dramatically changed by the "public law litigation" of more than three decades ago and the subsequent expansion of aggregated litigation (large multiparty, consolidated, or class action suits). Two movements - case management and ADR - have especially influenced the transformation of aggregated litigation. The result has been the protracting and segmenting of aggregated litigation into manageable parts that can be subjected to separate decision or settlement.

Seven devices for segmenting aggregated litigation are examined in this Article. "Trial runs" provide a non-binding proceeding in which shortened presentations of the evidence are made to different kinds of neutrals to obtain an evaluation of each side's case. "Bellwether cases" are actual trials of a small number of cases selected out of the aggregated litigation that normally do not have preclusive effect but offer a picture of how different juries view cases across the spectrum of the aggregated litigation. "Sample trials and extrapolation" involve use of statistical analysis to derive individual damage verdicts from the trial of sample cases or from aggregate determination by a jury, but have generally been rejected by the courts.

"Bifurcation", "hybrid class actions", and "phased trials" are devices for segmenting issues in aggregated litigation, allowing a jury to determine certain issues whose resolution might lead to settlement without the need to litigate all issues and which avoid predominance of individual issues that would prevent aggregate treatment. Defendants, who generally oppose aggregation, have raised impediments to such segmented models based on denial of due process because of alleged lack of individualized treatment of cases, failure to provide a trial by the same jury of non-separable issues alleged to violate the "reexamination clause" of the Seventh Amendment, and noncompliance with the standards and requirements of class actions and aggregate devices. The courts are fundamentally divided on many of the principles and techniques used. Finally, "claims procedures" are a device for allowing certain issues, particularly damages, to be determined by court surrogates or administrative processors to avoid individual trials at the end of bifurcated litigation. The permissible scope of such proceedings is controversial, and the exact processes are in flux.

Keywords: Class Actions, Consolidation, Aggregate Litigation, ADR, Case Management, Trial Runs, Bellwether Cases, Sample Trials, Bifurcation, Hybrid Class Actions, Phased Trials, Jury Trial, Reexamination Clause, Seventh Amendment, Claims Procedures

JEL Classification: K41

Suggested Citation

Sherman, Edward F., Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process. Review of Litigation, Vol. 25, p. 691, 2006, Tulane Public Law Research Paper No. 06-11, Available at SSRN:

Edward F. Sherman (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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