§42.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§42.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Whether or when a party should seek or oppose consolidation of cases or separation of issues for trial or hearing must be decided on a case-by-case basis. Each case is different, and attorneys may differ on the appropriate strategy if presented with the same case. Nevertheless, as a general rule, defendants in tort cases tend to advocate bifurcation of liability and damages more often than plaintiffs. Both sides are often receptive to separation of some kind in complex commercial cases and sometimes in complex mass tort litigation.

(1)Consolidation under CR 42(a)

As common sense suggests, courts should grant motions to consolidate when the criteria set forth in CR 42(a) are met and when consolidation will necessarily promote efficiency without prejudice to a party. Thus, when seeking consolidation of cases, point out all questions of fact and law that are common to the cases. Undertake to persuade the court that consolidation will reduce the number of similar and redundant motions the court will have to consider and will reduce the potential for inconsistent rulings that might result if different judges are asked to decide the same or similar motions in related cases.

Consider the following basic checklist in preparing or responding to a motion to consolidate:

(1)Are both of the actions for which consolidation is sought pending before the same superior court?

(2)Are there jurisdictional impediments to consolidation?

(3)What issues of fact do the actions have in common?

(4)What issues of law do the actions have in common?

(5)To what extent are there common parties in both actions?

(6)Are both actions at approximately the same juncture in the litigation process? (I.e., will discovery need to be "redone" to allow some of the parties in the consolidated action to "catch up"?)

(7)How will consolidation enhance the efficient administration of both cases?

(8)Will consolidation minimize or eliminate a risk of inconsistent results?

(9)Will consolidation minimize or eliminate a need for redundant discovery, motions, hearings, or trials?

(10)Will consolidation reduce all parties' costs of litigation, or will it reduce one or more parties' costs without increasing other parties' costs?

(11)Conversely, will consolidation result in a substantial increase in cost to any particular party?

(12)Will consolidation reduce inconvenience to uncompensated witnesses by reducing the number of times they will be required to travel and testify?

(13)What is or will be the most tactically opportune time to move for consolidation?

(14)What facts or factors has discovery revealed that support consolidation and what facts or factors tend not to support consolidation?

(15)Is discovery at such a stage that a party opposing consolidation will be able to argue that the motion is premature?

(16)Will consolidation result in prejudice to any party?

(17)Will consolidation cause any significant delay in resolution of either case?

(18)Does it make sense to consolidate the separate actions for limited purposes, such as discovery, rather than for all purposes, including trial?

(19)What are the likely or possible consequences of consolidation?

(20)Will consolidation lead to a subsequent determination by the court to separate or bifurcate issues in the consolidated case for hearing or trial?

(21)Will consolidation potentially affect the order in which parties and/or claims are presented at trial?

(22)Will consolidation complicate the legal issues such that jury instructions will be unduly complex?

(23)Will consolidation make the facts more confusing to a jury, increasing the risk of an erroneous or unfair jury verdict?

(24)Will all the parties in all actions agree to consolidation? (If not, will all the parties in all the actions agree to consolidation for purposes of discovery and pretrial proceedings?)

(2)Separation of issues under CR 42(b)

Courts are more likely to grant motions to bifurcate when they are persuaded that the issues to be decided separately are indeed "separable and distinct," that any objecting party will not be prejudiced, and that there is a strong likelihood that meaningful amounts of time will be saved or expense avoided.

Consider the following checklist in preparing or responding to a CR 42(b) motion to separate claims or issues for trial:

(1)If separation is sought to avoid prejudice, what is the potential extent of prejudice and how will separation result in avoiding or eliminating prejudice? (Note: CR 42(b) does not appear to demand a showing of undue prejudice.)

(2)If bifurcation is sought for convenience, or upon grounds that it will be "conducive to expedition and economy," how will it accomplish such purposes?

(3)Is there a substantial disparity between claims or potentially dispositive issues in terms of the amount of time and/or the quantum of evidence necessary to try each?

(4)If trial is held first on a potentially dispositive issue that requires little trial...