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What is Bifurcation and Why Would Someone Want Two Trials?
By William Lorenz, Jr. on May 31, 2018

The costs associated with bringing a lawsuit can add up very quickly, and are not always justified.  Every client believes they have the winning hand at the beginning of litigation.  However, after commencing an action and enduring paper discovery, depositions, and motion practice – a process that can take years – a client may begin to have doubts about the strength of their case.  Such doubts can arise even on the eve of trial, after a considerable amount of time and money has been spent preparing for court.  Rather than wait for such a feeling to occur, a client would do well to consider the advantages of bifurcating their case.

Bifurcation is the splitting of a case into two separate trials.  Generally, a civil lawsuit can be naturally divided into two major issues for a trier of fact, such as a judge or a jury, to decide: liability and damages.  In a bifurcated case, the issues of liability and damages are decided separately.  The trier of fact will only decide the issue of liability at the first trial.  If the defendant is not found to be liable, then there will be no damages trial.  However, if the defendant is found to be liable, then a second trial will be scheduled to decide damages.

Looking at an automobile accident case as an example, the first question to be answered by a trier of fact is usually: “Did the defendant cause the accident?”  If the plaintiff can establish that the defendant is in fact liable for the accident, the trier of fact must now decide how much money, or damages, to award the plaintiff.  The parties will now move on to the issue of damages, which will be its own separate trial, usually with a separate trier of fact.

            At first glance, parties may be concerned about spending money and resources on two trials instead of one.  However, bifurcation can be a great option from an economic standpoint for both parties, especially if the issue of liability appears to be questionable.  Bifurcating the trial will save the costs of putting on, and refuting, evidence of damages, which can include retaining expert witnesses such as economists, doctors, and accident reconstructionists, and of course the preparation time by the respective legal teams.  Such costs may prove to be unnecessary if the liability hurdle cannot be overcome.  Bifurcation usually reduces the amount of time the first trial will take since evidence of damages will not need to be (and in fact is forbidden to be) produced, again saving resources and money.  It is conceivable that the cost of the two smaller trials will end up the same, or even less, than one longer trial.

Deciding liability in the first trial will also provide a clearer perspective as to how responsible a defendant really is.  In the auto accident example, suppose the jury finds the defendant 70% liable.  The plaintiff, by definition, has therefore been found to be 30% liable for the accident.  Going into the damages trial, the plaintiff now knows that any award from that jury must be discounted by 30%.  If, for example, the jury awards the plaintiff $100,000, the award will be reduced by 30%, meaning the plaintiff will actually recover $70,000 (excluding legal fees).  Having this information before entering the damages phase will allow both parties to weigh their options in attempting a settlement before gambling on a second trial.  If liability has been successfully established, meaning the defendant’s percentage of fault is high, the parties will often reach a settlement before the damages trial actually occurs.  If the damages trial does occur, however, much of the pressure is off the plaintiff, since the defendant has already been found to be at fault.

In a case with more than one defendant, deciding liability first can potentially remove a defendant from the damages portion of the case.  This is again advantageous to both sides, as the plaintiff will not need to prepare a case against a defendant who was found not liable, and the defendant who was found not liable need not worry about preparing for a damages trial.

            Bifurcation is not without its risks, however.  Without the damages component in the liability trial, a plaintiff is not able to fully convey the toll the incident at issue has had on their life.  Returning to the auto accident example, perhaps the accident at issue occurred at a low speed, but the plaintiff required multiple surgeries.  Without being able to go into detail about their surgeries, the plaintiff in a bifurcated trial is only able to say they were involved in a low speed accident.  The plaintiff can only make a general statement about suffering injuries, which may not sway a jury given the appearance of the accident.  The full effect of that accident on the plaintiff’s life is, for better or worse, kept out of the liability trial.

In addition, if the first trial for liability had a jury, it is possible that a new jury will be picked for the second trial, one which is not as favorable to the client as the first one.  Perhaps the first jury for the liability trial believed in the plaintiff’s case, but the second jury feels the damages from the accident are minimal.  Now the client has paid for two different trials and their case has been drawn out even longer, but they have ended up with a small reward.

            Bifurcation is a unique tool that is often ignored by both clients and attorneys.  It can save money yet keep a case moving to trial at the same time.  Bifurcation requires a deep understanding of the strengths and weaknesses of a case.  Even if the option of bifurcation is not selected, both the attorney and the client will be in a better position for an eventual trial after having taken the time to evaluate their case.  Because of that, attorneys and clients would do well to consider if bifurcation is the right course of action.

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