• Working together, courts can select the trials most likely to produce illustrative verdicts.

In multijurisdiction litigation involving large numbers of cases, the first trials typically serve as bellwethers, giving parties crucial information on the value of their remaining cases and thus facilitating settlement.  Judges with related cases therefore should consider coordinating selection of the first cases to go to trial.  Selecting cases randomly or allowing attorneys complete freedom to choose bellwethers is unlikely to produce a representative set of verdicts that will assist the parties in reaching a global settlement.  Permitting plaintiffs to dismiss cases on the eve of trial also can distort the information provided by bellwether trials.

The representativeness of trials also can be diluted by jurisdictional differences in substantive law. It is important to keep in mind that the goal is to have bellwether trials that address the main points of contention between the parties. For example, joint and several liability rules vary by jurisdiction.  A defendant that faces much greater potential liability in one jurisdiction than another will allocate its efforts accordingly.  If the real battle is not being fought in your courtroom, consider deferring to the court where it is, provided that doing so will not compromise your case management and case disposition obligations and is consistent with your local rules and culture.

An effective approach is to divide related cases into categories, based on the key issues. The categories might be based on plaintiff characteristics, claim types, or applicable law. Select bellwethers from each category.

With all courts involved in multijurisdiction litigation working together, the trials selected can produce the most helpful verdicts while expending the least party and judicial resources.

See examples and model orders

Next section: Acknowledgments

Suggested reading

Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (2008)