Legal Update April 15, 2016 Bellwether Trials: A Defense Perspective Environmental torts such as chemical spills or issues that can arise during bellwether groundwater contamination may result in proceedings and discuss important hundreds or even thousands of lawsuits, often in considerations from the defendant’s perspective. multiple state and federal forums. Traditional judicial procedures are ill-suited to handle these An Overview of Bellwether Proceedings sprawling actions. Devices for aggregating The term “bellwether” comes from the practice claims, like class actions, are often inappropriate of placing a bell on a wether (a male sheep) to as well. In these situations, courts and litigants lead the rest of flock while grazing.1 The concept may seek to break the deadlock by fast-tracking appeared in the legal lexicon in 1972, when the a manageable number of individual cases for US Supreme Court noted that 12 of 85 plaintiffs discovery and trial—in so-called “bellwether” in a securities case had been selected as proceedings—with the hope that the outcomes “bellwether plaintiffs” for an initial trial.2 will shed light on the large number of cases It has since become a common mechanism to waiting in the wings. resolve environmental torts and other mass Although most discussions of bellwether torts where the sheer number of plaintiffs proceedings take the plaintiffs’ or the judge’s makes it impossible to try each plaintiff’s perspective, defendants stand to gain or lose just claim individually. as much from the process. Indeed, because In bellwether proceedings, a small cohort defendants are guaranteed repeat players when of plaintiffs is selected and their cases are it comes to litigating a mass tort, they face fast-tracked for any remaining discovery and unique considerations in deciding whether and trial. The bellwether parties can file dispositive how to participate. Defendants should not motions and motions in limine, discuss necessarily fear bellwether proceedings. individual settlements and, if these pretrial Properly utilized, they can elucidate how legal proceedings do not resolve the claims, then and factual theories will fare in the crucible of proceed to trial. The other plaintiffs’ cases are contested pretrial motions and trials. But when generally stayed during this time, although in bellwether proceedings are implemented some instances discovery also can proceed on an poorly—so early in the litigation, say, that overall basis. The process should not be geared defendants have not had time to sufficiently at prohibiting defendants from taking discovery understand the plaintiffs’ evidence and claims— of all plaintiffs, because as “a general proposition they can be not only unproductive but every party to a civil law suit has the right to take prejudicial to the defendants’ rights. In this legal depositions of the other party, absent a update, we seek to familiarize defendants with protective order entered by the trial judge.”3 interested in testing. As one discussion of the Instead, this process is more of an ordering bellwether process put it, “common sense device that allows for an initial close dictates that the greater the number of trials to examination of a subset of the plaintiffs’ claims, be held, the greater the number of variables at with the expectation that the remaining issue, and the greater the discretion afforded in plaintiffs’ claims will be addressed once the selecting which cases will be tried, the larger the bellwether process runs its course. pool should be.”4 At the same time, the bellwether cohort must be small enough to be When the process works as intended, bellwether manageable. Striking the right balance is a mix proceedings produce a great deal of value for of art and science and depends on the legal and everyone. The parties can work through factual underpinnings of the case. dispositive or critical legal issues in front of the judge. They can see what arguments work—and In addition to deciding how many trials to hold, do not work—with the jury. They can learn what the parties must also decide how to populate the sorts of damages a jury might deem appropriate bellwether cohort. Methods vary. The Manual for certain types of alleged injuries. Most for Complex Litigation recommends that judges importantly, the parties and the court can use select test cases randomly or that the parties the information generated by the test cases to select mutually agreeable cases for trial.5 But in reassess the remaining litigation. The defendant practice purely random selection is rarely used, may realize that its exposure to liability and and mutual agreement can be hard to come by. damages is greater than it thought. Or plaintiffs’ Sometimes both parties each will select a counsel may realize that their claims are unlikely handful of candidates and have limited veto to sway a jury or judge. Having gained a better power over their opponents’ choices. Other sense of the “real-world” value of all of the times the parties opt to have the judge choose claims, the parties can, at least in theory, make from a pool populated by both parties. In this as more realistic and therefore more successful in so many aspects of bellwether procedure, the proposals to settle most or all of the global “right” outcome depends as much on the needs litigation. There are, of course, other ways to get of the parties as on any objective criteria. information about the strength of claims and A recent study suggests that plaintiffs may do a defenses, such as mock jury trials. But the “worse” job selecting bellwether candidates than bellwether process has clear advantages, defendants, in the sense that plaintiffs tend to guaranteeing “real-world” results and giving select less typical (and usually more plaintiff- both sides a shared frame of reference. favorable) cases for trial.6 This may make sense Considerations for Defendants for individual plaintiffs’ counsel, who usually operate on a contingency basis and whose goal A number of factors affect whether the may simply be to get to trial as quickly and bellwether process will serve this intended cheaply as possible. But for defendants, and function. Before agreeing to a bellwether even for plaintiffs, focusing on a handful of proceeding, defendants should think critically unrepresentative cases may undermine the about the following issues. process. In the words of the Fifth Circuit, this The selection of bellwether plaintiffs. risks turning the bellwether process into “a trial of fifteen (15) of the ‘best’ and fifteen (15) of the The court and the parties have a great deal of discretion in crafting bellwether procedures. ‘worst’ cases contained in the universe of claims” 7 Exactly how many plaintiffs to put in the in the litigation. With unrepresentative bellwethers, the defendants and remaining bellwether pool often depends on the type of dispute at issue and the variables the parties are plaintiffs might dismiss the outcome of a 2 Mayer Brown | Bellwether Trials: A Defense Perspective bellwether trial as an aberration. Worse, if the defendant’s ability to depose plaintiffs or best plaintiffs’ claims are tried first, the conduct discovery, the process can prevent the remaining plaintiffs with comparatively weaker defendant from gathering necessary information claims might overvalue their claims, pushing the to determine whether to resolve claims quickly parties further from settlement. This would by way of settlement or dispositive motion. For serve no bellwether function at all. these reasons, it is generally preferable from a defense standpoint to hold off on bellwether At bottom, therefore, bellwether procedures procedures until after the parties have had a should ensure that test cases sufficiently mirror chance to conduct some limited discovery on all, the universe of cases. The fundamental objective or at least a substantial number, of the of bellwether litigation is not to resolve the plaintiffs.9 Plaintiffs, of course, generally are relatively small number of disputes in the incentivized to minimize costs, so they may push bellwether cohort but rather to inform for the creation of a “bellwether” process early defendants and plaintiffs of the plausible value on in an effort to short-circuit or minimize of the large number of remaining claims. discovery of their generally numerous clients. The timing of bellwether proceedings. Defendants also may seek a “Lone Pine” order, Another important consideration for defendants which is a pre-discovery order that “essentially is timing. The bellwether approach can be require[s]” a mass tort plaintiff to produce applied at nearly any stage of the litigation, from “information which plaintiffs should have had the outset of the case to right before trial. Courts before filing” suit, such as “information have even begun to explore “bellwether regarding the nature and substance of his settlement,” in which earnest settlement injuries, the circumstances under which he could discussions are held with a few select plaintiffs have been exposed to harmful substances, and and the results are used to build a settlement the basis for believing that the named “template” for the non-bellwether plaintiffs.8 defendants were responsible for his injuries.”10 Although every bellwether proposal must be Armed with this information about the plaintiffs’ assessed on its own terms, from the defendant’s claims, defendants can begin to assess the perspective, bellwether procedures are generally wisdom of bellwether proceedings from an even more worrisome the earlier in the litigation they playing ground. This makes bellwether discovery are employed. Remember that bellwether trials on a subset of plaintiffs less problematic and are most useful when their outcomes shed light more likely to lead to useful trials. on the larger litigation. When plaintiffs seek to The potentially binding effect of use bellwether procedures right from the start, bellwether proceedings. A significant however, the defendant—and many of the concern for defendants is whether the results of plaintiffs—may get no real idea on how the test cases will be given binding effect in later bellwether plaintiffs compare to their non- litigation.