Let’s talk bifurcation.
Nick Rowley recently gave a talk about bifurcation, and I agree with his thinking and belief that bifurcation is widely underutilized. However, I think there are some risks that Nick may overcome simply by being Nick, so let’s discuss.
First, bifurcation means separating the liability and damages portions of the trial. The damages phase is only appropriate if jurors find in the plaintiff’s favor on liability. Sometimes, this means having the same jury hear both phases, and other times, it may mean separate juries and separate trials. This has implications.
The benefits of bifurcating are based on jurors’ innate tendencies to let liability bleed over to damages (and vice versa). This bleedover can sometimes be helpful, but it is often detrimental. For example, if you have a weak liability case (i.e., comparative fault or little to no anger points), the liability weaknesses can trigger jurors to want to give lower damages. Bifurcation, in this instance, can help put a barrier between a weak liability and a strong damages case, thereby releasing some of the hold that liability problems have on damages.
Some considerations, however, are whether you would end up with two separate juries. While Nick Rowley isn’t so concerned about this setup, I believe it can backfire in some cases. Having two separate juries hear liability and damages essentially gives you an admitted liability case when approaching damages, which means jurors hear nothing about what happened. Sometimes, this may be preferable (i.e., a typical car crash case where the defendant is a nice elderly man who simply had the sun in his eyes for a moment). Other times, you want jurors to hear the liability portion to incite anger. In those instances, you would be best served by bifurcating with the same jury.
In cases where liability and damages are both strong, you may not want to bifurcate, as they will bolster one another. That said, many cases can benefit from bifurcation, and not doing so may cost you substantially.