This concludes our series of blog posts on trial preparation and presentation as related to class actions.
As discussed in earlier posts, trying class actions shares nearly all the same issues, tasks, and risks as other complex trials, but with heightened complexity and risk. Courts, in an effort to efficiently try classwide claims, which functionally, and somewhat awkwardly, eliminate the requirement for individualized proof of causation and damages as to absent class members, will sometimes try to devise innovative procedures to simplify the process. For class defendants, these measures—be they trying the case in different stages or using test cases—will often provide neither efficiencies nor benefits to their case. Because class actions often tend to focus primarily on the defendant’s conduct rather than requiring plaintiffs to demonstrate their right to relief, inside counsel and trial counsel should develop concise arguments against the adoption of any court-created measure that could potentially stack the deck further and divest the client of due process rights, the right to a jury trial, or the adherence to prevailing substantive law. In a typical securities or consumer class action, it will often be important to demonstrate plaintiff’s own failure to act reasonably through a demonstration of reasonable conduct by other, more satisfied customers; this will require development by and coordination between inside and outside counsel.
Trying a class action also requires that counsel organize large amounts of documents, testimony, and other information, connect the trial themes to that information, and streamline the presentation of the information so a jury can easily comprehend the client’s story and logically connect the evidence to it. Class action defense counsel must make a particularly nuanced decision. It is likely part of the defense strategy to demonstrate the inherently individual nature of the named plaintiff’s claims, but offering too much detail or over-saturating the presentation with, for instance, the discussion of the differences between the law among various states, risks confusing and overwhelming a jury and, ultimately, hurting both the primary and secondary strategies. In general, defense counsel will benefit from being able to use his client’s defenses to the named plaintiff’s claims to demonstrate to a jury the impossible complexity of proving causation and damages on a classwide basis. Where the court chooses to bifurcate the issues to be tried, additional complexities in presenting evidence are introduced.
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.