TO BIFURCATE OR NOT TO BIFURCATE? — THAT IS THE QUESTION.

In my experience as a trial consultant, I’ve found that many attorneys have strong opinions on bifurcation — separating liability from damages. The most opinionated litigators on this subject have had their thoughts colored by personal experience; which while valid, is not always the best way to decide such an important issue. Recently, a commercial litigation client asked me to weigh in on the subject in a case that had the potential for high damages. I thought it would be useful if I applied the Socratic Method (while hoping not to appear too pedantic). The conversation went something like this:

CHRIS: “Why do you think bifurcation might be helpful?”

CLIENT: “I think if they find liability, there’s a risk of significantly high damages.”

CHRIS: “So how does separating the damages phase from the liability phase decrease damages?”

CLIENT: “Juror anger drives damages. Given some time, they won’t be as angry.”

CHRIS: “I’m with you. So are you saying that bifurcation decreases juror anger?”

CLIENT: “That’s the theory. As time between the two phases goes by, I think people cool down a little.”

CHRIS: “So, cooler heads might mean people decide more logically?”

CLIENT: “That’s the idea. What’s the peer-reviewed research say?”

If I had a background in psychology like some of my colleagues at Tsongas and in the jury consulting field, I might have said, “What do you think it says?” But my background is in communication and, as you now know, I like to avoid sounding pedantic. So instead I said….

CHRIS: “The research says it doesn’t make any difference.[1]”

CLIENT: “Then why do this?”

CHRIS: “Well, that’s an overall finding. In specific cases it may make a difference. The authors of the studies (and consultants) continue to call for additional research. What we’ve seen at Tsongas suggests that if the jury has a strong consensus, it can’t hurt to bifurcate because having separate processes does seem to cool people down.”

CLIENT: “So that means it can’t hurt to bifurcate when you’re defending?”

CHRIS: “Yes and no. Sometimes the extra step gives the high-consensus jury a second opportunity to punish the defendant. But with a low-consensus jury, defense-leaning jurors lose their negotiating power in the second stage. In the liability phase, some defense-leaning jurors may find liability, but believe low damages are more appropriate. If the discussion of liability and damages are at the same time, those jurors can bargain with their ‘yes’ vote on liability to work toward an agreement for lower damages. With a bifurcated trial, that opportunity is lost.”

CLIENT: “How can you know if it’s going to be a high-consensus or low-consensus jury?”

CHRIS: “We can’t be certain, but we can have high or low confidence based on mock jury research. To test damages, we recommend four groups. The key is having more data.”

The above is an amalgam of several conversations I’ve had. Typically the next topic is whether or not to argue an alternative damage figure. That’s a subject for another time, but one I will follow up on relatively soon.

[1] A good literature review can be found in Green and Bornstein’s, Determining Damages (2003).