Alternative Trial Structures

Disposition management achieves results through setting firm trial dates. Settlements, including group and global settlements, occur in the wake of a court’s disposition management. What are the effects of various trial structures, such as individual trials, con­solidated trials, and class actions? The main focus is on the number of cases grouped together for common treatment, but this report also looks at different structures, such as bifurcation and reverse bifurcation, that may be applied to the trial of individual or group cases.

The structure of trials determines the structure of the settle­ments. A simple illustration makes the point: Individual scheduling of cases produces individual settlements and a class action struc­ture produces class settlements. Unlike the variations in settle­ment practices, variations in trial structure are likely to make a major difference in the rate of dispositions. Indeed, these variations are probably the prime determinants of disposition rates.

Many assume that litigation is a case-by-case process, with the focus on the individual claimant.218 Class litigation challenges these assumptions, whether it be an antitrust class action, a consumer class action, or, more rarely, a mass tort class action. In all of these actions, however, unless individual relief is so minimal that distribution to the class would be uneconomical, damages ulti­mately must be allocated to identifiable individuals who are mem­bers of the class. As discussed in the last section, leaving these allo­cation decisions to the lawyers presents difficult, but not insur­mountable, problems.

The structures discussed in this section all require that lawyers, judges, or juries will make informed decisions about the amount of damages that each individual should receive. Grouping of cases for pretrial or trial purposes should not be understood as necessarily leading to a conglomeration of all claims for all purposes. Properly used, grouping of cases organizes them for collective decisions on the common issues, with individual applications to follow. Group

218. See, e.g., Hensler, supra note 1, at 108.

Chapter VII

settlements or consolidated trial decisions are not a license to treat unequal cases equally.