This continues our series of blog posts on trial preparation and presentation as related to class actions.
Preparing to try a class action case, in general, encompasses all of the issues and concerns inherent in trying any complex case, but certain aspects make trying these cases unique and heighten the need for a strong, integrated partnership between inside and outside counsel.
In claiming that the named plaintiff “represents” hundreds or thousands of absent class members at a trial, skilled plaintiff’s counsel will imply that this vast number of defendant’s victims are all aggrieved and eager for justice. As a strategic matter, inside and trial counsel should prepare for a battle over preliminary jury instructions concerning characterization of the class to the jury at the outset of trial. Specifically, counsel will likely want to draft proposed instructions on this point, emphasizing that the existence of the class does not equate to thousands of absent individuals actively pursuing claims against the defendant. Perhaps more important, inside counsel will need to assist outside counsel in identifying and organizing trial testimony from customers, stockholders, and others, such as brokers or agents, some of whom may be class members, who can be expected to testify favorably for the defense at trial.
Inside and trial counsel must also prepare carefully for how the named plaintiff is to be handled on examination. It is often possible in such circumstances to obtain favorable testimony or even turn the class representative into a witness for the defense. For instance, in terms of decertifying the class at trial (or merely limiting any potential liability to the named plaintiff alone), the class representative’s cross-examination testimony concerning facts material to her claim will often highlight the unique and inherently individualized nature of that claim and make it difficult for the fact-finder to attach liability to unknown, unseen class members who, based on the class representative’s reported experiences, invariably have their own different, unique stories. In a recent case, in which certain disclosures were at issue, we treated the plaintiff as an example of a good consumer, pointing out that she was entirely justified in being cautious and reading the materials provided by the company, but was misled by her unaffiliated broker, not by any of the written materials.
Excerpted from the trial preparation and presentation chapter of Successful Partnering Between Inside and Outside Counsel, a multi-volume treatise that is a joint project of West and the Association of Corporate Counsel.