To b ... Or not to b ... "b ..." means bifurcation.

• Author: Tobin, David L.
• Position: Dividing a case into separate trials

From 1997 through May 2000, as judge in the 11th Circuit Court, I have bifurcated hundreds of cases in which the issues of liability and damages were involved. The most surprising statistic is that during this three and one-half years I have tried only one case in which the issue was damages! Do I have your attention?

Sometime in 1997, I was discussing calendar control and judicial efficiency with one of my colleagues, Judge Amy Donner, who said that she was bifurcating most of her cases. After our conversation, I examined the trials in my division for the year 1995 and found that of the 40 jury trials, eight of them were slip-and-fall cases. Of these eight, seven resulted in a verdict for the defendant. It occurred to me that if we tried only liability, between seven and 14 days of jury time would have been saved, enabling us to try several more cases. Accordingly, I then decided to screen our cases and began bifurcating slip-and-fall cases only. I hope that this article will assist judges and attorneys in selecting those cases in which bifurcation would benefit litigants and attorneys, as well as the court.

Definition

For the purpose of this article, bifurcation means dividing a case into two separate trials: one in which a jury determines liability, and a second trial in which a jury determines damages. The jury will also determine percentage of liability as well as comparative negligence, if any. Bifurcation of civil cases is not to be confused with severing a case when the case against one defendant is tried separately from that of another defendant.

Cases Not to be Bifurcated

First, let me put aside the issues of bifurcation in family matter cases. We are not dealing with bifurcation of dissolution proceedings, which are only done under exceptional circumstances. Bifurcation in dissolution matters is fraught with numerous perils which are amply set forth in Williams v. Williams, 659 So. 2d 1306 (Fla. 4th DCA 1995). Well then, to what kind of cases am I referring? This article will address slip-and-fall cases, products liability cases, automobile accidents, and general negligence matters where two issues exist, i.e., the issues of liability of the defendant to the plaintiff, and the plaintiffs damages caused by such negligence.

Authority for Bifurcation

Case law dating back to 1967 in Watts v. Mantooth, 196 So. 2d 230 (Fla. 2d DCA), makes clear that the trial court has the discretion to bifurcate a case so long as discretion is not abused. In the Mantooth case, the court said, "In passing, we note that on many occasions a new trial is granted, on the issue of damages only, in which instance, of course, a separate jury determines the amount of damages, if any, to be awarded." The Mantooth case was quoted by the Third DCA in 1980 in the case of Hernandez v. Leiva, 391 So. 2d 292, in which the court said that it was within the discretion of the trial court, on its own initiative, to bifurcate and continue the trial as to damages and attorneys' fees.

In Microclimate Sales Company v. Doherty, 731 So. 2d 856 (Fla. 5th DCA 1999), the court stated that bifurcation was generally proper absent a specific threat of inconsistent verdicts or prejudice to a party. The court cited R. Civ. P. 1.270 (b), which gives the court authority for bifurcation and says that such action would not be reversed absent an abuse of discretion. The court further said that the trial court exercised its discretion, and ordered the matter bifurcated in the interest of convenience and judicial economy.

Judicial economy does not mean saving the court money, but does in fact indicate an ability of the court to more efficiently move cases through the system from the filing of a lawsuit until the day of trial. If only the issue of liability is tried to verdict, there may be no trial for damages. Reasons for this outcome could be settlement of the case after the determination of liability or a finding of no liability on the part of the defendant by the jury.

Advantages of Bifurcating Liability Cases

With the average automobile liability case or slip-and-fall case, the advantages of bifurcation are as follows:

1) The trial on liability is shorter...