In the interests of (1) judicial economy and (2) preventing the jury from considering the extent of the damage while considering the question of liability, court rules often allow (if not encourage) judges to bifurcate liability and damages phases of trials as necessary.   Many of the court rules concerning bifurcation, such as the relevant rule in New York State or its counterpart in California, are available on the Internet.  An encyclopedic definition of bifurcation is available from the 'Lectric Law Library's Lexicon.  Bifurcation arises perhaps most often in family law cases, in which the question of whether or not to grant a divorce is considered independently of the distribution of assets and children.

The bifurcation of trials can have serious implications for the size (or even the existence) of the plaintiff's expected recovery in a civil action.  Judges in different states and circuits have expressed different levels of willingness to bifurcate cases; indeed, a bifurcation is generally viewed as a tip for the defendant, but this does not imply that bifurcation is not necessary or appropriate  protect parties who the law does not recognize as legally liable.  Furthermore, as discussed in a recent practice bulletin "Insurer's Motions for Bifurcation: The Latest Attempts at Delay," bifurcation motions invariably result in significant expense for both parties.  This presents particular problems for under-capitalized plaintiffs' firms.

Recently, the New York State Bar Journal published "Bifurcation of Medical Malpractice Trials" by David Hoffman and Jeffrey Nichols.  The authors survey the current state of bifurcation and argue that plaintiffs' claims should be checked through bifurcation just as aggressively in medical malpractice cases as they are in any other area of the law.

In the Woburn trial, the bifurcation raised additional issues because the jury had an incentive to answer questions in the negative; after a long and drawn-out trial, the jury knew (if only sub-consciously) that certain answers would wrap up their participation in the case and let them go home sooner.  Needless to say, such incentives do not lead to optimal verdicts.  One solution to this problem would be to seat a new jury for the damages phase; the original jury, then, would have no self-interest in their decision.   Indeed, the damages jury would not have the liability information (including any witnesses presented in the liability phase) already available to them, so gains in judicial economy would be partially offset by the potential redundancy.  Since the law ostensibly resets the hurdles after each requirement is satisfied, however (the probalities are not compounded), this may not be an unreasonable compromise.


1) Waterworks: Did Grace and Beatrice contaminate the wells?

2) Causation: Did the poisons cause the illnesses?

3) Damages: How much is this worth?


For background, See 75 Am. Jur. 2d Trial ' 140 (1991):

In a growing number of jurisdictions and cases, it is generally held that the issue as to the liability of the defendant on the merits of the case may be tried separately from, and prior to, the issue as to the damages recoverable. This is commonly referred to as a bifurcated trial. Indeed, judges are encouraged to conduct bifurcated trials in personal injury actions where it appears that bifurcation may assist in a clarification or simplification of issues and in a fair or more expeditious resolution of the action. Thus, bifurcation is proper where liability is based on hotly disputed facts and there are complex damages issues including whether certain injuries were caused by the accident or were the natural result of degeneration, all of which would require a tremendous amount of the trial court's time and expense. However, the decision to hold separate trials on the issues of liability and damages is a matter within the sound discretion of the trial judge, and unless prejudice is shown, will not be reversed on appeal.

A bifurcated trial is normally appropriate unless the nature of the injuries has an important bearing on the issue of liability. But the trial court should be alert to the danger that evidence relevant to both issues may be offered at only half of the trial; this hazard necessitates the determination that the issues are totally independent prior to bifurcation.

Observation: It has been noted that in tort actions, first resolving the liability issue may have the effect of eliminating the need for a second trial on damages in the event no liability is found. As a result, bifurcation is an attractive device in many tort proceedings.

In summary, bifurcated trials on the issues of liability and damages can be dangerous for plaintiffs. One study found that plaintiffs win in approximately 58 percent of cases tried as one, while their percentage of victories is reduced to approximately 21 percent of cases in which the liability issue is tried separately. Therefore, plaintiff's counsel should always argue strongly against bifurcation of liability and damages issues because bifurcation diminishes the impact of plaintiff's case. (Footnotes omitted)

See also 78 A.L.R. Fed. 890, Propriety of Ordering Separate Trials as to Liability and Damages, under Rule 42(b) of Federal Rules of Civil Procedure, in Actions Involving Personal Injury, Death, or Property Damage by Eunice A. Eichelberger, J.D.