Trending: courts bifurcating trials to resolve legal issues

The COVID-19 pandemic has changed the judicial landscape on many fronts - including increasing the use of technology and eliminating procedural roadblocks in order to facilitate access to the courts. Suffice it to say, the pandemic forced the judiciary to innovate and adapt. The courts' already limited resources, coupled with a backlog of cases exacerbated by the pandemic, has compelled California courts to implement new measures to expedite and economize.

Judicially ordered bifurcation is trending in California civil courts to address the backlog and shorten jury trials. The California Code of Civil Procedure Section 1048(b) empowers trial courts to split the trial of an action into a bench trial of legal issues, followed -- sometimes months apart -- by a jury trial of the fact issues, where the interests of justice require.

As it states, the court "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States." CCP § 1048(b).

In what appears to be a trend, judges have been bifurcating trials sua sponte to dispose of legal issues first, including declaratory relief, and other equitable claims, and then setting jury trials to address the remaining issues on a later date. This may encourage settlements as to the remaining claims or reduce the length of jury trials.

The courts' vested interest in expediting the resolution of cases or economizing, whether by way of bifurcation or some other method, is supported by the Judicial Council of California's 2022 Court Statistic Report. According to the Report, approximately 96% of the total cases disposed by trial (in fiscal year 2020-2021) were decided by judges without juries. This is a 4% increase from fiscal year 2019-2020. Not a tectonic shift, perhaps, but not insignificant.

Is this a trend?

According to a study published at a 2017 Fordham Law School symposium, 20% of federal civil court cases were decided by trials in 1938. By 1990 that figure was down to 4.3%, and in 2000 to 2.2%. ("Access to Justice and the Legal Profession in an Era of Contracting Civil Liability," Prof. Nora Freeman Engstrom, Fordham Law Review, Vol. 86 2018, pp. 2131-2147.) Along with fewer trials, there was a drop in the length of federal civil trials. In 1983 the federal districts' single-day trials counted for 46% of the total trials; by 2016, single-day trials grew to 54%. Bifurcation may be among the causes of the apparent trend toward shorter trials, along with docket overcrowding and court underfunding.

Bifurcation under CCP 4018(b) does not necessarily double the number of civil trials. Though statistics are not available, a bench trial that resolves legal issues may, and probably should, spark the urge to mediate or perhaps arbitrate the remaining issues.

Bifurcation in Insurance Cases

Recalling from personal recent experience, bifurcation has been ordered sua sponte in insurance-related matters. In one such example, Marin County Superior Court bifurcated all legal, declaratory and equitable claims in a matter and ordered the relevant parties to try those claims to the court as phase one of the trial. The parties who were not directly involved with either the legal, declaratory or equitable claims were ordered to refrain from participating in phase one of the trial and were prohibited from making objections.

Following the bench trial on the bench trial issues (completed in May), the court issued a statement of decision in August, and set a date for a subsequent trial setting conference to schedule the second phase of trial - the jury trial. The court's statement of decision resolved key legal issues, subject to appeal, such as whether the policy in question was ambiguous, and whether the insurance policy terms complied with California law. The court's decision reduced the length of the anticipated multi-week jury trial.

In another case, venued in Fresno County Superior Court, a judge similarly ordered the parties in another insurance coverage dispute to try the case's legal, declaratory and equitable claims in bench trial. The court ordered the parties to stipulate to a list of issues for the court to consider and adjudicate. The main parties, the insurer and the policyholder, agreed, in large part, to which facts they could stipulate, and which issues of law the court would be asked to decide. Much similar to the case in Marin County, the court's decision narrowed the issues to be tried before a jury.

Impact of Bifurcation on Attorneys and Clients

Courts will set earlier trial dates for legal, declaratory relief, and equitable claims, to be followed by a jury trial - taking place months later. Being prepared to try these claims requires counsel to be diligent in completing discovery to avoid delay. If certain issues are critical to counsel's theory or defense of the case, crafting complaints or cross-complaints in a deliberate manner may help reduce costs and increase the likelihood of settlement.

Jury trials may never be as efficient as they were in TV's Perry Mason, but the civil litigation process seems to be on a diet. Being open to and prepared for time-saving measures is the first step in promoting litigation efficiency.