Bellwether Trials: A Defense Perspective

Environmental torts such as chemical spills or groundwater contamination may result in hundreds or even thousands of lawsuits, often in multiple state and federal forums. Traditional judicial procedures are ill-suited to handle these sprawling actions. Devices for aggregating claims, like class actions, are often inappropriate as well. In these situations, courts and litigants may seek to break the deadlock by fast-tracking a manageable number of individual cases for discovery and trial—in so-called "bellwether" proceedings—with the hope that the outcomes will shed light on the large number of cases waiting in the wings.

Although most discussions of bellwether proceedings take the plaintiffs' or the judge's perspective, defendants stand to gain or lose just as much from the process. Indeed, because defendants are guaranteed repeat players when it comes to litigating a mass tort, they face unique considerations in deciding whether and how to participate. Defendants should not necessarily fear bellwether proceedings. Properly utilized, they can elucidate how legal and factual theories will fare in the crucible of contested pretrial motions and trials. But when bellwether proceedings are implemented poorly—so early in the litigation, say, that defendants have not had time to sufficiently understand the plaintiffs' evidence and claims— they can be not only unproductive but prejudicial to the defendants' rights. In this legal update, we seek to familiarize defendants with issues that can arise during bellwether proceedings and discuss important considerations from the defendant's perspective.

An Overview of Bellwether Proceedings

The term "bellwether" comes from the practice of placing a bell on a wether (a male sheep) to lead the rest of flock while grazing.1 The concept appeared in the legal lexicon in 1972, when the US Supreme Court noted that 12 of 85 plaintiffs in a securities case had been selected as "bellwether plaintiffs" for an initial trial.2 It has since become a common mechanism to resolve environmental torts and other mass torts where the sheer number of plaintiffs makes it impossible to try each plaintiff's claim individually.

In bellwether proceedings, a small cohort of plaintiffs is selected and their cases are fast-tracked for any remaining discovery and trial. The bellwether parties can file dispositive motions and motions in limine, discuss individual settlements and, if these pretrial proceedings do not resolve the claims, then proceed to trial. The other plaintiffs' cases are generally stayed during this time, although in some instances discovery also can proceed on an overall basis. The process should not be geared at prohibiting defendants from taking discovery of all plaintiffs, because as "a general proposition every party to a civil law suit has the right to take depositions of the other party, absent a protective order entered by the trial judge."3 Instead, this process is more of an ordering device that allows for an initial close examination of a subset of the plaintiffs' claims, with the expectation that the remaining plaintiffs' claims will be addressed once the bellwether process runs its course.

When the process works as intended, bellwether proceedings produce a great deal of value for everyone. The parties can work through dispositive or critical legal issues in front of the judge. They can see what arguments work—and do not work—with the jury. They can learn what sorts of damages a jury might deem appropriate for certain types of alleged injuries. Most importantly, the parties and the court can use the information generated by the test cases to reassess the remaining litigation. The defendant may realize that its exposure to liability and damages is greater than it thought. Or plaintiffs' counsel may realize that their claims are unlikely to sway a jury or judge. Having gained a better sense of the "real-world" value of all of the claims, the parties can, at least in theory, make more realistic and therefore more successful proposals to settle most or all of the global litigation. There are, of course, other ways to get information about the strength of claims and defenses, such as mock jury trials. But the bellwether process has clear advantages, guaranteeing "real-world" results and giving both sides a shared frame of reference.

Considerations for Defendants

A number of factors affect whether the bellwether process will serve this intended function. Before agreeing to a bellwether proceeding, defendants should think critically about the following issues.

The selection of bellwether plaintiffs.

The court and the parties have a great deal of discretion in...