What is Bifurcation Law?
Bifurcation law is relatively simple. Bifurcation is the splitting in two of any process, such as an action at law. According to BIFURCATION, Black’s Law Dictionary 120 (6th ed. 1990), it involves "a branching into two"; "the act of separating into two parts." So, in law, the civil courts may bifurcate – separate each cause from the others. Criminal courts also may do this.
Bifurcation dates back to the 18th century, but it was not until the 1960s that its significance became evident in the UK and US. Just think of those numerous highly publicized jury trials during the 1960s, which led to the practice of separating damages from liability .
Bifurcation’s purpose is to maximize the chances of settling a case.
Many lawsuits progress in stages, so that earlier stages may be resolved without the need for trial on every issue. Thus, in some cases, a court may hear first the issue of whether a party is liable – fault – and, if that issue is resolved, the damages issue – the amount of damages – is resolved later. Both issues are separately tried, and a separate judgment is rendered on both liability and damages. Either issue can be submitted to arbitration.
Different Types of Bifurcation in the Legal Field
Bifurcation in the legal context can take many different forms depending on the matter at issue. Of the various kinds of bifurcation commonly encountered by trial and appellate attorneys, the two most frequently seen types are issue bifurcation and evidentiary bifurcation.
IN THE TRIAL COURT
Issue bifurcation, as it pertains to litigation within the California state court system, may be requested by either party to a civil action or be imposed by the court at any level sua sponte. (See California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶ 16:117-134.) The classic example of issue bifurcation is separating liability and damages. (See Evid. Code § 444; California Practice Guide: Civil Procedure Before Trial, supra, at ¶ 16:118.) However, issue bifurcation is not limited to separating damages and liability; it can also apply to any number of preliminary issues within a civil proceeding. However, unlike in the federal courts, the state courts generally presume in favor of "single-trial" treatment of litigation matters, with limited exceptions granted. (See California Practice Guide: Civil Procedure Before Trial, supra, at ¶ 16:134.)
In the criminal context, issue bifurcation, which focuses on separating the phase of liability and charges, is rarely granted. In fact, the California legislature has prohibited the practice. (See Pen. Code § 1040.8(b).)
Evidentiary bifurcation in the civil context, as the term suggests, refers to the practice of separating the presentation of evidence by each party, typically where one party has more than one claim or defense. Thus, unlike issue bifurcation, the focus of evidential bifurcation is separately presenting evidence on issues that may not fall under the same claim or defense. As with issue bifurcation, the state courts generally presume in favor of this procedural application in limiting evidentiary presentation.
IN THE APPELLATE COURT
When a party appeals from an order, judgment, or other appealable judgment in a direct appeal, the appellate court can, and often will, separate the appeal and issue multiple opinions on the matter. (See Cal. Rules of Court, rule 8.1115, subd. (a)(2).) When done, the severed opinions may be referred to as "bifurcated opinions." While each opinion will be denoted with the same case number, the separate opinions become completely independent of each other unless one or more of the bifurcated opinions are partially published or published in full.
In the appellate context, bifurcation can also be utilized to separate one issue from another. For example, the California Court of Appeal can issue a separate opinion on the substantive issues involving the merits of the case, and then issue a second opinion solely on the issue of costs and attorney’s fees.
Advantages of Applying Bifurcation in Court
The advantages of bifurcation are clear. This makes it a valuable tool for the legal system on multiple levels. For the party initiating the bifurcation, their interests are protected. For example, in a personal injury trial, a defendant who bifurcates might be able to keep evidence of subsequent injuries out of court, keeping the jury focused on their liability in the defendant’s negligence rather than the plaintiff’s choice to ski a dangerous slope the following winter.
This bifurcation also has benefits to the jury. If the bifurcation is successful, the jury is not exposed to unnecessary evidence and may be more focused on the defendant’s exposed situation. The jury is not able to make assumptions about the merits of the case based on hearsay evidence or possible bias that might be unfairly exposed to them from the start. For these reasons, bifurcation can be very useful when used correctly.
The Drawbacks and Critique of Bifurcation
Though often a boon to litigants, bifurcation is not without its challenges, drawbacks, and critics. A common concern is the fact that it can worsen the already contentious and divisive nature of lawsuits, as it separates the claims against the defendant into separate mini-trials, with the potential of verdicts that are contradictory, perverse, or unjust. For instance, in a products liability case, jurors may, in separate phases, find a product defective but not the manufacturer or retailer liable, or vice versa. Similarly, in a commercial dispute involving both contract and tort claims, the jury may find the defendant liable for a breach of contract but not liable for fraud, even though the plaintiff believed that the two theories were inseparable.
This phenomenon is not limited to rulings as to liability, but can easily crop up with respect the amount of damages awarded by a jury. In a bifurcated trial in which the jury in Phase 1 of the litigation reaches an award of damages for pain and suffering, but the jury in Phase 2 reaches an award of damages only for economic loss, the plaintiff may be left with the nullification of his pain and suffering award because of an inexplicably low economic award, and thus left without any damages at all. In a recent opinion, the Florida appellate court in City of Seaside v. Monterey Sand Co., Inc., 95 So.3d 953, 167 (Fla. 2012) reversed the jury verdict on the grounds of inconsistency, stating: "[T]he jury erred when it awarded the city prejudgment interest against Pacific without awarding the same amount of prejudgment interest on the same basis against Monterey Sand[.] Griffith v. Barnett Bank of Polk County, 607 So. 2d 398, 400 (Fla. 2d DCA 1992) (holding that the trial court erred in entering judgment in inconsistent amounts under a jury verdict). Therefore, we remand this case with directions to award the city prejudgment interest in a consistent amount as to each defendant. See id." To the trained legal eye, the potential problem associated with bifurcation is obvious: how does a jury reconcile its findings if the bifurcated claims are necessarily interrelated? Assuming that the claims are sufficiently distinct to justify bifurcation (which is in of itself at issue), even then the bifurcation does not make sense in light of jury verdicts that may be inevitably irreconcilable.
Examples Illustrating Bifurcation
As previously noted here, bifurcation is a method of dividing the proceedings of a case into two parts, one related to liability and the other to relief. The division is usually made by dismissing the complaint, leaving the counter-claim, or vice versa. Where the answer responds to the complaint as if it were a counter-claim, the proceeding is still "split" because the answer will be construed as the complaint in the second proceeding.
An early and seminal bifurcation case is the 1914 decision of Anderson v. Dornan, 107 Neb. 222, 185 N.W. 851 (1914). In Anderson the parties had mutually agreed to a sale of real property with a $1,000 deposit. The plaintiff filed an action to recover the deposit. In the answer, the defendant sought specific performance of the contract along with recovery of the deposit as part of the consideration. The trial court granted summary judgment for the plaintiff. On appeal, the defendant argued that the issue of the purchase of the land should be decided first, so that a decision on the deposit would follow . The court of appeals reversed the trial court’s decision and found for the defendant after determining that specific performance was the only proper remedy.
Texas-loving bifurcation fans might also be interested in Havner v. E-Z Mart, Inc., 119 S.W.3d 190 (Tex. 2003), along with its companion case, Redinger v. Living, 798 S.W.2d 662 (Tex. 1990). Havner and Redinger are the go-to cases on how bifurcation is used in medical malpractice actions in Texas. While Redinger doesn’t make explicit mention of bifurcation, the case discusses the procedure employed when a defendant admits liability so that the jury does not need to consider the issue of liability. In Havner, the defendant admitted liability for causing the plaintiff’s injuries at the beginning of the trial, and the jury was told to examine only the issue of damages. The Supreme Court of Texas turned to Redinger and found that both cases employed the same method regarding the procedure following a defendant’s admission of liability, thereby affirming the trial court’s granting of an instruction to that effect.
Bifurcation Law Around the World
While the United States provides a comprehensive framework for bifurcation law, its use and adaptation can vary across the globe. The United Kingdom employs a similar approach but is more focused on how it will impact third parties. In Canada, bifurcation may be reversible, and in some regions like France, there are alternative laws that govern whether bifurcation ought to be established. Rather than "bifurcation"法, as it is referred to in Japan, the court system in place is known as "shimpan" and allows for a standard three-step trial process unless a party requests for it to be sped up.
While many of the same rules may apply to cases across the globe, there are slight variations in the way that bifurcation is utilized. France presents a notable, albeit subtle, difference. Similar to the English approach, French law distinguishes between procedural and substantive stages. However, the procedural stage must be examined first, to determine whether a bifurcation would be of practical utility. If the period for appeal has expired without an application to separate the trial, the French courts will no longer consider it. Chinese bifurcation rules are detailed and lay out strict standards for bifurcation. Use has decreased in France from 9% in 1985 to 5% in 2008. In 2005, a 12% ratio was recorded. Hong Kong presents a unique case, as a single judge must hear all appeals. Even after a trial has concluded, a live appeal can be put "on hold" to assess bifurcation opportunities.
As such, it is clear that bifurcation is applied differently around the world.
Prospects of Bifurcation Law
The future of bifurcation law holds promise for greater efficiency and effectiveness in the legal system. As courts continue to grapple with burgeoning case loads, the ability to effectively break cases into manageable components will become increasingly important. The continued refinement of bifurcation practices may result in specialized courts or alternative dispute resolution mechanisms that utilize bifurcation more systematically.
Technological advancements also play a critical role in the evolution of bifurcation law. For example, the use of video conferencing technology could allow for remote depositions, which would significantly reduce the need for travel and ease scheduling hassles. Additionally, sophisticated software for case management will permit attorneys and courts to identify and group similar issues or cases , thereby streamlining processing and reducing overall litigation expenses.
Furthermore, as the legal community becomes more familiar with the practical applications of bifurcation, new uses for the technique in areas beyond litigation may be explored. For instance, attempts to resolve disputes through arbitration or mediation before the trial phase enters could significantly reduce the time and cost expended in adversarial proceedings, while allowing for a more controlled and less stressful atmosphere for the parties involved.
The bottom line is that an awareness of bifurcation law and its tools can help clients get more on-target legal results faster and with less money spent than waiting to discover the bifurcation issue at the end of their case when they probably want to bifurcate to save time, expense, and possible appeals after they’re forced to litigate through trial.