Atlanta partner article on reverse bifurcation published by American Bar
Atlanta partner Doug Henderson had his article “Reverse Bifurcation: Litigating Damages Before Liability?” published in the Fall 2010 issue of the American Bar Association’s Natural Resources & Environment magazine.
“To slice and dice in litigation, Federal Rule of Civil Procedure 42(b) permits a trial court, ‘in furtherance of convenience or to avoid prejudice,’ to order a separate trial of ‘any claim’ or ‘separate issue,’” Henderson stated in the opening of his article. “It is under Rule 42(b) that bifurcated trials occur, in which the causality and liability phases are typically separated from the damages phase of the trial.”
Henderson cautions, however, that “Rule 42(b) also permits ‘reverse’ bifurcation, where first causation or damages are tried, followed by a separate trial on liability, [and that] reverse bifurcation is by no means a standard case management approach.” His article then focuses on examining specific case examples of reverse bifurcation.
“Given the right set of facts, the right legal issues, and the right judge, reverse bifurcation could become a valuable tool in handling large toxic tort and contamination cases,” Henderson concludes. “But given the wrong application, reverse bifurcation could unfairly reallocate the burdens of proof in a civil trial.”