Archive for April 28th, 2008

A trial plan provides the judge with a road map for how the trial is expected to proceed.  Trial plans can be an effective pre-certification tool for both plaintiffs and defendants in class action lawsuits.  They can be as detailed or as generalized as the court requires and can cover a variety of issues, including bifurcation, the order of proceedings, which issues are to be resolved on a class-wide basis and which must be resolved individually, and what evidence will be presented at each stage of proceedings.

For defense counsel, asking the court to require the plaintiff to provide a trial plan illustrating the expected course of proceedings if the class is certified can help the defendant to persuade the court of practical manageability problems.  It may be one thing for the plaintiff to argue as an abstract matter that common issues predominate and that trial on a class-wide basis will be manageable, but having to provide a detailed description of how the case will proceed as a practical matter if the class is certified can expose weaknesses in these arguments.

On the other hand, voluntarily providing a specific trial plan can be also be an effective tool for plaintiffs in seeking class certification.  Provide a trial plan illustrating a reasonable and efficient process for resolving both common issues and any individualized issues can give even a skeptical court a level of comfort in certifying a class in the face of more abstract manageability arguments being raised by the defendant.

Trial plans have been used extensively in tobacco class action litigation both in decisions whether to certify a class and in decisions to decertify a class previously certified.  For examples, see here and here.

At least one state’s courts have held “that a trial plan is part of the rigorous analysis [c]ourts must perform . . . before ruling on class certification.'” North American Mortgage Co. v. Lee, No. 02-1050 (Tex. Dec. 17, 2004) (quoting Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000) (emphasis added)).  However, many state and federal courts will not by rule or on their own initiative ask for the submission of a trial plan as a matter of course in evaluating class certification.  Trial plans are not required under FRCP 23 or the similar rules of many states.

Even if a court does not require a trial plan in connection with class certification proceedings, it cannot hurt to suggest that the plaintiff be required to submit one in order to test manageability and predominance of common issues.  Ordering a trial plan is certainly something within a court’s inherent supervisory powers and its discretionary authority in managing class action proceedings under Rule 23(d).  Where manageability is suspect, forcing the issue by requiring a trial plan can help to illustrate manageability problems in a way that more generalized arguments in briefs may not make clear.

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