This adage is never more true than in the world of civil and criminal litigation. I say this because our strategic decisions and actions before the jury is impaneled and opening statements begin often play a bigger role in the outcome of a case than any single event that occurs during the trial itself.
I have previously written about using pretrial motions in limine to exclude or limit evidence. In this post I want to talk about severance and bifurcation as a sound strategy under certain circumstances.
First, a brief explanation of the procedure. Severance or bifucation refers to an order by the judge, in cases involving multiple issues or claims, that separate trials will be held of the different issues. Severance in the Federal courts is governed by Rule 42 of the Federal Rule of Civil Procedure (FRCP). Rule 42(b) provides:
“(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”
In my civil practice, defendants sometimes seek bifurcation–or separate trials–of the issues of liability and damages. The wisdom of this is apparent if we consider a personal injury case involving unusually horrific damages. If the defendant is successful in obtaining bifurcation of liability from damages, it may be possible to exclude evidence of the horrific damages during the trial of the liability phase. After all, damages evidence is irrelevant to whether the defendant caused the plaintiff’s injuries. This can be huge if evidence of the plaintiff’s horrific damages will engender extreme sympathy which might cause the jury to look beyond the liability evidence and return a verdict fueled by emotion.
Another example could be if there is a unique affirmative defense that could be tried separately and, if successful, will greatly shorten the duration (and attendant costs) of the trial. If, for example, the defendant believes it has a strong statute of limitations defense which relies on the testimony of just a few witnesses, the judge can order this issue be tried first and separately from all other issues. If the defense prevails, it saves the court and the parties from the time and expense of trying the entire case only to reach the same outcome.
There are other situations in which separate trials could powerfully impact the outcome of the case. I recently read the account of one of Edward Bennett Williams’s famous trials, defending former U.S. Treasury Secretary John B. Connally. Connally was accused of accepting two $5,000 payments from a lobbyist for the Associated Milk Producers “as a thank-you for helping bring about higher price supports for milk after the Secretary of Agriculture had initially refused to raise them.” Emily Couric, The Trial Lawyers (St. Martin’s Press, 1988) at 331. In addition to accepting the “gratuities,” Connally was also charged with conspiring to obstruct justice and with perjury in connection with Connally’s conduct during the government’s investigation of the payments.
Among the strategies employed by Williams was “a decision to narrow the courtroom debate. By focusing on a single issue, [he] . . . reasoned, he could more easily prove his client’s innocence.” Id. at 335. Williams thus moved and persuaded the court to sever the counts related to taking the $10,000 in gratuities from the counts relating to obstruction of justice and perjury. Williams argued that “if the government could indict you for perjury for denying the thing that they were accusing you of, in every case they could call the accused before the grand jury, and when he denied that he committed the offense, they just add perjury counts.” Id. at 338. The court agreed and granted the motion for severance.
The net effect was to preclude the prosecution from even telling the jury about the obstruction and perjury charges. When Williams ultimately won the trial of the gratuity counts against Connally, the “defeated” prosecution dismissed the remaining counts for obstruction of justice and perjury. Years later, the prosecutor, Frank Tuerkheimer, commented that:
“The most result-oriented thing Williams did in the Connally case . . . was the pretrial motion to sever the counts. It was a major tactical win with tremendous consequences for the outcome.” Id. at 338.
A motion to bifurcate is not appropriate in every case. In fact, it’s probably not appropriate in most cases. But it is a strategy to at least consider, particularly if a successful motion can create a huge tactical advantage such as it did for Williams and his client.