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The development of a trial plan is a well-established mechanism for bringing order to complex litigation. See, e.g., Annotated Manual for Complex Litigation, Third �33.28 at 416-418 (West 2001). Until recently, however, the use of trial plans in class action litigation has not been a standard device for a variety of reasons. First, most class actions settle, usually long before trial. Second, the parties often prefer generality when arguing over class certification; plaintiffs could urge that the case would be manageable since common issues predominate, while defendants could insist that individual issues would render the case untriable since there was no viable plan for trial. Courts could go either way, depending on their view of the social value of class actions or their calendar. Only juries, which were stuck with the mess that parties and courts made by certifying class actions in the absence of a workable trial plan, had the incentive, but lacked the voice, to speak up. All this is changing. Today, many courts are insisting, or are required to demand, that parties prepare detailed plans for how they intend to accomplish trial of the proposed class action. The reasons for this important, but largely unexamined, phenomenon are many: (1) the explosion of putative class actions in areas such as mass torts that lie well beyond the traditional bounds of class litigation; (2) judicial experience with the real-world difficulties with class actions in these new fields resulting in specific mandates for trial plans; (3) the Supreme Court’s limitation of the ability to create classes for settlement purposes only; and (4) the greater opportunity for early appellate review of class certification decisions, particularly in the federal system. CLASS ACTION USE EXPANDS At the beginning of the 21st century, class actions are proceeding in areas far removed from the types of cases — such as securities, civil rights and government benefits — common as recently as 20 years ago. Most of these new fields, including mass torts, consumer fraud and medical monitoring, are state or common law claims that, until recently, met resistance when brought as class actions under Federal Rule of Civil Procedure 23 or its state law equivalents. In the view of many, the inability to bring such claims as class actions meant many such claims were not brought at all. Today, however, it is commonplace for class action treatment to be sought when repeated injuries or harms from a common practice, product or relationship occurs. The successive generations of asbestos litigation in particular have led to expansion in the use of class actions as a means of pursuing product liability claims. The success in prosecuting, if not settling, asbestos claims utilizing the class action device has spawned putative class actions in a score or more of prominent product liability matters involving medical devices, pharmaceuticals, tobacco products, workplace chemical exposures and many others. Charles W. Schwartz & Lewis C. Sutherland, “Class Certification for Environmental and Toxic Tort Claims,” SF 61 AL1-ABA 29, 32 (2001). Building on that success, class status has been sought in litigation against other providers of other consumer services such as HMOs, insurance companies, Internet service providers and banks. There is also strong renewed interest in class actions arising under civil rights laws particularly against private companies. Courts have often been sympathetic to the use of the class action device in these new contexts because of the potential for relief to a wider group of plaintiffs, many of whom did not or could not pursue individual actions. Regardless of their sympathies, however, courts across the country are struggling today with these novel class actions because, in practice, they are difficult to reconcile with the requirements of Rule 23 and other constitutional protections afforded to absent class members and defendants. The primary mechanism for such reconciliation, and perhaps now the most important battleground in class actions prior to trial, is in the design of the trial plan. COURTS DEMAND TRIAL PLANS In ruling on a motion for class certification, a court must conduct a “rigorous analysis” to assure that Rule 23 requirements have been met. General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982). Plaintiffs bear the burden of establishing a factual record supporting certification. In re American Medical Systems Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Faced with class actions that seek to aggregate claims of increasingly broad and disparate groups of plaintiffs, many courts across the country now require that plaintiffs, and sometimes both parties, prepare detailed trial plans at the time of or in advance of class certification. For example, in In re Ford Motor Company Vehicle Paint Litigation, 182 F.R.D. 182, 224 (E.D. La. 1998), the district court required the plaintiff to submit a trial plan, saying it was constrained from “certifying a class now and worrying about how to try it later.” Similarly, in Southwestern Refining Co. Inc. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000), the Texas Supreme Court declared that “it is improper to certify a class without knowing how the claims can and will likely be tried,” requiring plaintiffs to submit trial plans prior to certification. Some courts now formally integrate the submission of a trial plan into the class certification process, e.g. A.J. Liquor Co. Inc, et al v. State Compensation Insurance Fund, Case No. 975982 (Sup. Ct. S.F. Cty. Calif., May 6, 1996, n.4); In re Propulsid Litigation, Case Code 247, Case Man. Order #4 (Sup.Ct. Middlesex Cty. N.J. Feb. 2001). In these courts, and many others, plaintiffs are required to submit detailed proposed trial plans in advance of, or contemporaneous with, class certification briefing and argument. SeeFed. R.Civ.P. 23(d) (authorizing district courts to issue orders to manage class actions). Importantly, the draft Committee Note to the proposed amendments to Rule 23 specifically acknowledge that certification-related discovery may be required because “[s]ome courts now require a ‘trial plan’ that describes the issues that likely will be presented at trial, a step that often requires better knowledge of the facts and available evidence than can be gleaned from the pleadings and argument alone.” Class Action Litigation Report, Vol.2, No. 11 (BNA June 8, 2001) at 415. While the Committee has not yet proposed a rule requiring trial plans in all cases, its proposed Note reflects that trial plans are now a common, and accepted, practice in class actions. SETTLEMENT CLASSES With its decisions in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) and Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), the Supreme Court disapproved two major settlement classes intended to resolve major asbestos class actions. These decisions have encouraged the early assessment of trial plans for both substantive and practical reasons. Substantively, Amchemrequired careful scrutiny to determine whether plaintiffs have shown that common issues predominate over individual issues. 521 U.S. at 623. Such scrutiny is difficult to realistically undertake in the absence of a concrete and detailed trial plan. Perhaps more importantly, prior to Amchem, courts reviewing the propriety of class settlements often took a relaxed approach in assessing whether class certification criteria had been met. Elimination of this approach meant that expectations of a possible settlement would no longer permit deferral of a workable trial plan. Class certification now requires strict compliance with Rule 23 and its state analogues. Demonstration of compliance without a trial plan should be difficult except in the most routine of cases. APPELLATE REVIEW While New York affords liberal interlocutory appeals, in many jurisdictions, appellate review of class certifications has proven challenging, often limited to extraordinary writs such as mandamus. E.g., Philip Morris v. Angeletti, 752 A.2d 200 (Md. 2000) (reviewing trial plan and vacating order certifying class). This was equally true in the federal courts until late 1998, when Rule 23 was modified to permit appeal of orders certifying classes subject to the discretion of the Court of Appeals. Fed. Rule Civ. Proc. 23(f). In the absence of interlocutory appellate review, review of certification usually occurred after trial — a rare event in class action litigation. In the great majority of class actions, it was never necessary to give great weight to the possibility of review in determining class certification. The potential for interlocutory review places great pressure to establish a sound basis for certification decisions. In the absence of a trial plan, it would be difficult to do so. TRIAL PLAN AND CERTIFICATION Trial plans provide a concrete mechanism for determining all issues to be tried. This is largely accomplished by identifying with specificity the precise issues to be tried, allocating these issues among different stages or phases, and describing the particular mechanism during each phase for deciding these issues. When required prior to class certification, trial plans are relevant to the two most critical issues faced in the predominant Rule 23(b)(3) form of class action: whether “questions of law or fact common to the members of the class predominate” and whether “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. Rule Civ. Proc. 23(b)(3). Trial plans may also prove useful in Rule 23(b)(1) and (b)(2) putative class actions, but those forms do not share the more stringent manageability elements demanded in class actions under Rule 23(b)(3). The question of whether common questions predominate has often been left to guesswork in the absence of a trial plan. Plaintiffs urge that the common issues, usually relating to liability, will be the central battleground, with individual issues such as damages relegated to a vague, ministerial process to follow the “real” trial. Defendants, by contrast, paint a picture of unending minitrials lasting years or decades to decide the many remaining individual questions. With a proposed trial plan, the parties and the court can evaluate predominance with far greater care and precision. The contribution of the trial plan to this issue is not, however, merely one of providing particulars. The predominance assessment is not a mere arithmetic exercise, comparing the number of common versus individual issues or the number of trial days those issues might require. Instead, the Rule requires a pragmatic assessment of the entire action and of all the issues involved. 5 Moore’s Federal Practice �23.46[1] at 23-206 (3d ed. 1999). Trial plans best assist that pragmatic assessment by identifying those specific issues that will be tried on a common basis and those that require individual treatment. For example, a consumer fraud class may allege misrepresentations in the marketing of a consumer product. These misrepresentations may be of a similar nature such that their allegedly fraudulent nature and impact are described in the complaint as a common issue. In detailing these for purposes of the trial plan, it turns out that the misrepresentations varied according to time, content and context. The extent to which the trial plan fairly combines, or fails to aggregate, such diverse issues allows the trial court to more thoroughly analyze the predominance issue. It also facilitates appellate review and reduces the potential for subsequent decertification after the parties have devoted yet more time and resources to litigating a case ultimately denied class status. As useful as the trial plan can be for addressing the predominance issue, it is essential to any meaningful assessment of whether the proposed class action is superior to other methods of litigating the dispute. There are at least two key factors in the superiority calculus that are well advanced by information derived from a trial plan. First, the trial plan helps assess whether the proposed class action is a manageable process. Fed. Rule Civ. Proc. 23(b)(3)(D) (“the difficulties likely to be encountered in the management of a class action”). Second, the trial plan illuminates the extent to which the rights of parties to individual determinations are compromised by the class action device. Fed. Rule. Civ. Proc. 23(b)(3)(A) (“interest of members of the class in controlling the prosecution or defense of separate actions.”) In practice, these two elements work together. A trial plan may detail a workable process, but if it prejudices absent class members by improperly lumping unique aspects of their claims with those of other class members, the class action may not be superior. Alternatively, such problems may dictate the use of subclasses or redefinition of the class itself. Similarly, a trial plan may describe a logistically feasible process but at the expense of a defendant’s rights to a jury trial on individual issues. By identifying these problems early, solutions can be found in revising the trial plan, by narrowing the scope of the class action itself or by denying certification. The expanded use of class actions in new areas has brought with it serious issues of predominance and superiority. These cases involve more parties from diverse jurisdictions, multiple defendants, multiple causes of action, long periods of operative facts, concealed conduct and/or injury, punitive damage claims and often some element of individual issues, either factual, legal or both. Each of these elements endangers a finding of predominance and superiority but the extent of that danger, and the ability to mitigate it, depend on a detailed and viable trial plan at the point of class certification. Increasingly, failure to submit a plan as to how to deal with these issues can ensure denial of class certification. In Chin v. Chrysler Corporation, 182 F.R.D. 448 (D.N.J. 1998), a putative national class of car buyers and lessees of vehicles with defective ABS brake systems brought fraud and breach of warranty claims against a car manufacturer. A critical issue in deciding class certification was whether and how the law of 52 jurisdictions could be applied. In denying certification, the court noted that “[p]laintiffs, not the Court, have the burden of designing a workable plan for trial embracing all claims and defenses prior to class certification.” Id., 182 F.R.D. at 458. See also, Zinser v. Accufix Research Institute Inc., 253 F.3d 1180 (9th Cir. 2001) (affirming denial of class certification in absence of manageable trial plan to deal with individualized issues.) A trial plan can also shed light on other certification-related issues. For example, in some instances, the class definition is sufficiently vague to bring into question whether class membership can be determined until the individual issues phase of the trial; compare O’Connor v. Boeing North America, 184 F.R.D. 311, 327 (C.D.Ca. 1998) (class determinable without individual trials) with Newton v. Southern Wood Piedmont Co., 163 F.R.D. 625 (S.D.Ga. 1995) aff’d., 95 F3d 59 (11th Cir. 1996) (medical and legal trial on causation as to each class member required to determine class membership). Trial plans shed light on this threshold question by providing the concrete context for the analysis of when class membership is determinable. Deferred preparation of a trial plan can have prejudicial, even fatal consequences for a party’s claim or defense. For example, in a class action involving complex fraud claims spanning a period of years, the fraud allegedly perpetrated against some individuals may differ significantly from that inflicted on another. Plaintiffs often seek to link these fraud claims together by alleging that they formed part of a common course of conduct, and that the fraud issues are therefore sufficiently common to warrant certification. If the court agrees without a trial plan, it later must make some difficult judgments. It can elect to permit the fraud issue to be tried as a common issue as to all plaintiffs, prejudicing the defendants’ ability to separate the fraud claims and the plaintiffs affected thereby. To ameliorate this problem, the court could try separately the issue of whether the defendant’s conduct was fraudulent, saving for individual trials the questions of individual reliance and causation. Yet, unless the individual trials are before the same jury, there is no way of knowing what elements of the defendants’ conduct the jury found fraudulent in the common issues trial. The court might attempt to pose special interrogatories to winnow the allegedly fraudulent from the non-fraudulent conduct. In cases where conduct stretched over decades or took different forms in different jurisdictions, as is often the case in tobacco or some consumer fraud cases, this might result in a verdict form of extraordinary length and complexity. Defendants are deeply concerned about the lumping together of such issues in a common issues trial. Empirical research has shown that juries have significant difficulty separating similar, but distinguishable, issues that courts place together in certifying diverse classes. Irwin A. Horowitz & Kenneth S. Bordens, “Mass Tort Litigation: The Impact of Procedural Changes on Jury Decisions,” 73 Judicature 22, 27 (1989) (“[t]he net effect is that evidence for one trial issue contaminates the judgment of the other trial issues.”) Yet it is not merely defendants that may be concerned. Some plaintiffs, or groups of them, may have far stronger claims. Plaintiffs’ counsel often seek to leverage those with the strongest claims by using them to mask the weaker claims. This is a favorable strategy unless the weaker claims wind up infecting, and pulling down, the stronger claims, which might have been better asserted as individual claims or a separate class. If submission of a trial plan before certification surfaces, and contributes to resolution of these issues, the notice to absent class members rests on firmer ground and better meets the demands of due process. Do trial plans avoid or resolve these thorny dilemmas? Clearly not. What they can do is assure that they receive timely attention, prior to class certification, and allow the litigants and the courts to search for trial plans that work. Defendants might view the requirement of a trial plan as reducing the chances of class certification. Such a view could be premature, since requiring such trial plans may lead to modified, but more properly certified, classes better able to withstand appellate review. Certainly the track record in courts where trial plans have been required does not demonstrate a clear trend toward or against class certification. In O’Connor v. Boeing North American, supra, the trial court initially denied certification without prejudice, 184 F.R.D. 311, 316. Following submission by plaintiffs of a trial plan, an amended complaint and expert testimony, the court certified medical monitoring and property damage classes. 184 F.R.D. at 342. In contrast, in Burrell v. Crown Central Petroleum Inc., 197 F.R.D. 284 (E.D. Tex. 2000) plaintiffs submitted a proposed trial plan for prosecution of their proposed Title VII race and sex discrimination class action, contending that the plan “should eliminate any concerns the court may have in deciding whether to certify the putative class under Rule 23(b)(2) or (b)(3).” Id.197 F.R.D. at 291. The district court, however, rejected the plan, and certification, because, among other things, it proposed a common issues phase determining punitive damages before individual liability and damages had been tried in proposed separate trials. Id. Litigants and courts could object to requiring trial plans in advance of class certification, arguing that doing so either unduly delays certification or results in trial plans formed in advance of most substantive discovery. These are legitimate concerns. Yet, the impact of certification is as great as the scope of the class itself. Undertaking the step early in the name of expedience too often results in reversal or a completely untenable or prejudicial trial process. There is no question that trial plans formed early will be subject to change. As they do, they may affect the question of class certification. Yet courts often reconsider certification and, with greater frequency, decertify classes when circumstances warrant it. E.g., Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998), cert. denied, 526 U.S. 1114 (1999) (“Under Rule 23(c)(1), District Courts are required to reassess their class rulings as the case develops.”) Trial plans do not avoid that outcome but do help minimize it. TRIAL PLAN FORMATS Trial plans in class actions perform two key functions: they segregate common from individual issues into phases that achieve specific purposes, and they detail what the individual issues are and how they will be tried. One common trial plan provides for an initial phase in which identified common issues are tried. The second phase relates to the individual claims and defenses as to the named class representatives and the remainder of the class. This format is perhaps the basic model upon which most class action trial plans are based although many variants beyond the scope of this article exist, e.g., Chisholm v. Transsouth Financial Corporation, 194 F.R.D. 538, 545 (E.D. Va. 2000) (characterizing the model as the Wright-Miller-Kane model). See, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d �1790 (1986). There are as many variations on this model as fact patterns in putative class actions. Yet, there are several highly controversial issues that the basic model does not address. 1. Punitive Damages. Few issues in class action litigation are more important than when and how punitive damages are tried, yet this issue is rarely decided at the time of class certification absent a trial plan. The questions as to punitive damages include: (a) whether they can be awarded as a lump sum, as a multiplier of individual compensatory damages or on a per class member basis, (b) whether they can be tried before individual liability as to specific class members, or as to absent class members, has been decided; (c) whether they can be awarded before the actual amount of compensatory damages to the class has been determined; and (d) how punitive damages are allocated among class members if not determined on a per plaintiff basis. While a discussion of each of these issues would each warrant a separate article, it is plain that any trial plan must specifically detail how these issues are to be resolved. This early result can have important ramifications for both settlement and appeal. 2. Seventh Amendment Issues. One source of extraordinary conflict among litigants, and courts, in recent class action jurisprudence is the question of when the Seventh Amendment prohibits a second jury, sitting to determine individual issues, from reconsidering matters decided by the common issues phase jury. Compare Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, (5th Cir. 1999), cert. denied sub nom, Treasure Chest Casino v. Mullen, 528 U.S. 1159 (2000) (individual phase jury determination as to comparative negligence would not violate Seventh Amendment) with In re Rhone- Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir.) cert. denied subnom, Arady v. Rhone-Poulenc Rorer Inc., 516 U.S. 867 (1995) (determination of comparative negligence by second jury in individual phase would require reexamination of primary negligence finding of common issues phase jury in violation of Seventh Amendment). While the Supreme Court may ultimately provide guidance on this issue, courts are left with the effort to design trial plans that seek to avoid or minimize reconsideration by, in 7th U.S. Circuit Court of Appeals Chief Judge Richard Posner’s apt phrase, cleanly separating common from individual issues by “carving at the joint.” In re Rhone-Poulenc Rorer Inc., 51 F.3d at 1302. As in the case of comparative negligence, the ability of trial plans to create such a joint may be limited. 3. Use of Representative Plaintiffs. Certification of classes containing numerous or complex individual issues, however justified by the presence of common issues, present difficult challenges in efficiently resolving the individual issues of hundreds or thousands of class members. To avoid hundreds or thousands of minitrials, a process that could eliminate much if not all of the benefits of the class action procedure, some commentators have proposed the use of representative plaintiffs to resolve such issues. See generally, R. Joseph Barton, “Utilizing Statistics and Bellwether Trials in Mass Torts: What Do the Constitution and the Federal Rules of Civil Procedure Permit,” 8 Wm. & Mary Bill Rts. J. 199 (1999); “Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in Mass Torts,” 44 Stan.L.Rev. 815 (1992). This effort has met with mixed reception in the courts. See, Cimino v. Raymark Industries, Inc., 151 F.3d 297, 314-321 (5th Cir. 1998) (reviewing cases and disapproving of representative or bellwether trials as conflicting with Seventh Amendment right to jury trial on individual issues). It remains to be seen whether the sorts of complex trial plans proposed to resolve individual issues via representative pleadings will become accepted procedure. CAREFUL WHAT YOU WISH FOR Establishment of a trial plan has long-term strategic and substantive impacts far beyond the issue of class certification. While it is true that class certification, regardless of outcome, is often outcome determinative by leading either to dismissal or settlement, trial plans also shape discovery, lead to critical motions in limine or other evidentiary rulings, warrant particular jury verdict forms and influence all decisions as to order of proof. Consequently, arguments about a trial plan that seek to maximize or minimize class certification prospects without regard to how the trial plan elements affect the remainder of the case are perilous. It may be worth rolling the dice to secure or avoid class certification, but getting the trial plan you want but not the decision on certification sought could result in serious pitfalls at trial. To illustrate, plaintiffs might urge that it is undisputed that a single critical issue reaches across all class members to such an extent that, notwithstanding the existence of individual issues, class certification is warranted. They propose, or wind up with, a trial plan that contemplates initial trial of that issue as a threshold matter in a common issue phase. This issue, however, is not an emotional one but depends on complex expert witness proof. At trial, the defendants successfully limit evidence to only this dry issue and plaintiffs get a defense verdict such that the case is over. In so doing, they have won the battle of certification, perhaps hoping for settlement, only to lose the war at trial. Defendants may insist on a trial plan that preserves their right to a trial by jury of all individual issues, arguing against certification on the basis of unmanageability. They achieve a trial plan retaining many issues in the individual trial phase but fail to avoid certification. Having lost the common issues phase or phases, they now face the prospect of hundreds, if not thousands, of trials in cases in which the potential damages for each individual approximate one hour’s time of their trial team fees. In short, parties must approach the design of trial plans with foresight, balancing the short-term impact of trial plan elements on class certification against the effect such elements have on success at trial. Courts go through the same process. Many today take a far more active role in trial plans, effectively modifying the proposals of parties in order to achieve certification. Trial plans are no panacea for the defects inherent when classes of diverse claims are certified. What trial plans can do is minimize those defects consistent with the rights of all parties and help avoid them when necessary by revision of the proposed class or denial of certification. William K. Dodds is a partner at Dechertin New York and a member of its securities and financial services litigation group.

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