Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Six years after the attacks, these lawsuits were still pending. As Judge Hellerstein
observed, the slow pace of the litigation frustrated the plaintiffs. Some of the
victims were adamantly against settlement because they wanted the publicity of a
trial. But others, the judge believed, wanted to settle, and the only obstacle to
settling those cases was that the parties could not agree on their monetary value. So
he proposed holding bellwether trials for selected plaintiffs who would volunteer to
participate. The trials were to be for damages only; the jury would not consider
questions of liability or causation. The results were intended to be available to other
plaintiffs and to defendants to assist them in valuing cases for settlement. As a
result of the decision to conduct bellwether trials using reverse bifurcation, fourteen
of the cases have settled so far.
This is how the bellwether trial is used today. Cases are chosen, not quite randomly,
for trial on a particular issue. The results of the trials are not binding on the other
litigants in the group. The outcomes can be used by the parties to assist in settlement,
but the parties can also ignore these results and insist on an individual trial. . . .
Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)
2. Binding bellwethers? Note that the bellwether trials following the terrorist attacks of
September 11, 2001 were nonbinding on other litigants. How can such trials be binding on all
plaintiffs, given that the bellwether plaintiffs are typical of the rest of the plaintiff group?
Professor Lahav describes one possible approach:
In a binding bellwether trial procedure, the court will choose a random sample of
cases to try to a jury. The judge may then bifurcate the cases into liability and
damages phases, or perhaps even trifurcate them into liability, causation, and
damages phases. The parties will try each bellwether case before a jury that will
render a verdict in that case. Finally, the results of the bellwether trials will be
extrapolated to the remaining plaintiffs. The underlying principle of such an
extrapolation is that the bellwether plaintiffs are typical of the rest of the plaintiff
group such that the results of the bellwether trials represent the likely outcome of
their cases as well. What these extrapolation plaintiffs get in a bellwether trial
procedure is not individuated justice but rather group typical justice.
The following example explains how the extrapolation process might work.
Imagine that a court tries 100 sample cases and 50% of them result in plaintiff
victories. Of these 50, half are awarded $200 and the other half are awarded $300.
Taking all of these results into account, and counting the defense verdicts as $0, the
average award would be $125. Under a simple averaging regime, every plaintiff
would receive $125. If this result seems too rough, the court could calculate
separate averages based on relevant variables.
Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)
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