Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process
Sherman, Edward F., The Review of Litigation
The paradigm for the American civil trial is a single event in which witnesses and evidence are presented seriatim in a continuous proceeding.1 American trials are generally before juries, and lengthy recesses or continuances are to be avoided because jurors cannot be expected to be on call, remember evidence, or be insulated from improper influences during long intermissions. In a classic article in 1976, Professor Abram Chayes pointed to the emergence of a different model for "public law litigation," such as school desegregation, employment discrimination, antitrust, securities fraud, corporate reorganizations, union governance, consumer fraud, and environmental management.2 Such cases, he said, involve multiple parties, a sprawling and amorphous structure, need for discovery of large amounts of information, lengthy pre-trial preparation, and complex forms of relief. The proceedings may be protracted, and the judge becomes "the dominant figure in organizing and building" the case, drawing "for support not only on the parties and their counsel, but on a wide range of outsiders-masters, experts, and oversight personnel."3
Many of the "public law" cases described by Professor Chayes were declaratory or injunctive suits tried to a judge, and thus the protracted and segmented nature of the litigation did not have to contend with juries. But the structural changes in public law litigation he described had their genesis in the "case management" movement that arose out of an avalanche of federal court anti-trust damage suits against the electrical equipment industry in the 1960s.4 A single-event trial simply would not work for such complex aggregate litigation-that is, litigation in which the claims of many individuals are aggregated, whether by joinder,5 consolidation,6 or class certification. The case management movement, as particularly reflected in the 1969 Manual for Complex Litigation* prescribed a protracted litigation process divided into various segments en route to ultimate resolution not so much by a single-event trial as through such means as motions, summary judgments, partial disposition of claims or parties, and settlement at various stages.9
A second movement in the last several decades that coincided with the "case management" movement has also had the effect of segmenting litigation and deviating from the single-event trial model. This is the "alternative dispute resolution" (ADR) movement that took root in the 1960s and ultimately came to be "courtannexed" in the 1980s and 1990s as an integral part of the litigation process.10 The ADR movement experimented with non-binding settlement processes, which, true to the label of "alternative," have been largely conducted by private mediators, arbitrators, and dispute resolution organizations and professionals. Although the ADR movement is more focused on settlement without trial than is case management (which ostensibly seeks to prepare cases for trial) both have a common objective of achieving resolution without trial. The result has been the segmentation of litigation through a variety of devices that focus on certain parts for early disposition, schedule separate disposition or trial of discrete issues, and look to trial runs or extrapolation from other cases to aid in resolution.
The procedural devices that have developed out of these two movements have had a significant impact on the trial process in aggregated cases. Unlike the "public law litigation" model, these developments apply primarily to private suits for damages, often against corporate defendants. Like the public law model, the model for aggregate litigation involves segmenting of the trial process, extensive case management, and complex remedies. But since aggregated cases generally anticipate a jury trial (although a high percentage never reach that point due to settlement), the model must also provide mechanisms for presenting manageable segments to juries and use intertwining case management and ADR procedures to facilitate settlement at various stages. …