SC Lawyer, November 2007, #1. Bifurcation of Civil Cases in South Carolina and the Fourth Circuit: What to Consider and How Parties Can Benefit.

• Author: By Brian A. Comer

South Carolina Lawyer

2007.

SC Lawyer, November 2007, #1.

Bifurcation of Civil Cases in South Carolina and the Fourth Circuit: What to Consider and How Parties Can Benefit

South Carolina LawyerNovember 2007Bifurcation of Civil Cases in South Carolina and the Fourth Circuit: What to Consider and How Parties Can BenefitBy Brian A. ComerThough how a trial is divided is largely at the discretion of the trial court, "bifurcation" typically means the division of a case into two separate trials. For example, a judge may bifurcate a case so that the jury considers liability in the first trial and assesses the amount of damages in the second trial. 8 Moore's Federal Practice, § 42.20[6][b] (Matthew Bender 3d ed.). Bifurcation may be one of the most important concepts in civil litigation. Bifurcating a case directly impacts how issues are presented at trial and the lens through which a judge or jury views a case.

Conventional wisdom among trial lawyers is that bifurcation tends to be an advantage for the defense because of the "sterile" environment in which the case is tried. However, contrary to this conventional wisdom, several studies have shown higher damage awards for plaintiffs where the plaintiff prevails in the first phase and proceeds to a damages phase. These different perspectives raise numerous questions. First, who exactly benefits from bifurcation? What are the issues a party should consider when evaluating whether to bifurcate a trial? Furthermore, what is the law of bifurcation in South Carolina and the Fourth Circuit? This article seeks to answer these questions and provide some guidance concerning this important - but often underutilized - concept.

Arguments For and Against Bifurcation

Traditional thought is that bifurcation provides a procedural advantage to defendants by hamstringing the plaintiff's ability to present his or her case. One study noted that defendants in bifurcated trials prevailed 56 percent of the time, versus only 34 percent of the time in unitary trials. T. Callahan & H. Zeisel, Split Trials and Time Saving: A Statistical Analysis. 76 Harv. L. Rev. 1606, 1612 (1963) (examining unitary and bifurcated trials in civil tort cases in northern Illinois federal courts). Defendants cite numerous benefits that support these odds.

First, when a trial court bifurcates the trial into liability and damages cases, defendants are able to exclude from the liability phase evidence that is related solely to a plaintiff's injury. This limitation significantly decreases the chance that a jury will allow the severity of a plaintiff's injury to influence its determination of liability. Studies have shown that the "sympathy effect" of a plaintiff's injuries on a jury's determination of liability is very real. See James M. Beck & Anthony Vale, Drug and Medical Device Product Liability Deskbook§11.02(1)(c)(ii) (Law Journal Press 2007) (2004). Certain studies have also shown that jurors better understand and use evidence more appropriately in bifurcated trials. See Martin J. Bourgeois & M. Shea Adams, Separating Compensatory and Punitive Damage Award Decisions by Trial Bifurcation, 30 Law & Hum. Behav. 11 (2006). Defendants will also argue that bifurcation promotes judicial economy. If the jury returns a defense verdict during the liability phase of a bifurcated trial, then the court and the parties save the time and resources of presenting damages evidence to the jury.

Conversely, plaintiffs typically argue that bifurcation creates a "sterile" or "laboratory" environment that hides the seriousness of a plaintiff's injuries and removes the "human element" from the proceedings. In re Beverly Hills Fire Litig., 695 F.2d 207, 217 (6th Cir. 1982). In addition, if members of a jury are aware they will be able to go home if they check one box during the liability phase of a trial, fatigue might push an otherwise undecided or split jury to adopt the path of least resistance . . . and head for the exits. Plaintiffs may also point to constitutional issues. The reexamination clause of the Seventh Amendment states that, "no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law." U.S. Const. amend. VII. Some courts have interpreted this clause to mean that overlapping issues cannot be bifurcated, or else the same "fact" would be reexamined. W. Russell Taber, The Reexamination Clause: Exploring Bifurcation in Mass Tort Litigation: Analyzing the Constitutional Hurdle to Bifurcated Trials, 73 Def. Couns. J. 63, 64 (2006). Other courts have ruled that the clause places no prohibitions on bifurcation. Id.

However, bifurcation does not necessarily have to be a "zero-sum game" between the parties (i.e., where...