Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

When to Pick Up a Scalpel and Sever Your Case

scalpel_158302802Do know when seek severance of one or more issues in your case?

Severance or a separate trial is a procedural device that allows the court to divide a lawsuit into two or more parts, establish the order in which they will be resolved, and resolve them separately.

Severance can be an important way to improve trial efficiency because it allows the court to avoid adjudicating every issue in a case when deciding a subset of the issues may be dispositive.

You can make a motion to sever with respect to parties, issues, or evidentiary matters.

Here’s when severance is particularly attractive:

  • Resolution of one issue may resolve the entire case (e.g., the defendant is likely to prevail on a res judicata defense);
  • Evidence admissible on one issue might unfairly prejudice the jury on another issue;
  • One of several coplaintiffs or codefendants is situated differently or has adopted a different strategy from that of the others; or
  • A case is too complex to be digested in one sitting.

Wondering whether to seek severance in your case? Ask yourself the following questions:

1. Is severance desirable?

2. What are the tactical advantages and disadvantages of severance?

3. Would a related device (e.g., demurrer, order regulating the order of proof) be more advantageous?

4. Does a mandatory severance statute apply?

  • Statute of limitations defense in a medical malpractice action (CCP §597.5)
  • Punitive damages claims (CC §3295(d))
  • Separable issues of law (CCP §592)
  • Unconscionability (CC §1670.5)
  • Consolidated eminent domain proceedings (CCP §1260.020)
  • Custody of a minor child (Fam C §3023(b))

5. Does the general permissive severance statute (CCP §1048(b)) apply?

6. Does a specific permissive severance statute apply?

  • Special defense (CCP §597)
  • Liability and damages (CCP §598)
  • Improvident joinder (CCP §379.5)

7. If severance is not mandatory, would it be appropriate?

  • To promote efficiency
  • To avoid prejudice
  • To improve the accuracy of adjudication

8. How should the proceeding be structured?

9. Which claims or issues should be tried first?

10. Should there be a partial stay of discovery?

11. Should the separate trials take place before the same jury or different juries?

12. What would be the most appropriate scope of severance?

  • Complete severance
  • Separate trials

Courts may be reluctant to order severance unless you show that severance will reduce expense, confusion, or prejudice—so be ready to address all of these issues.

For coverage of the procedures involved in severance, including sample forms, turn to CEB’s California Civil Procedure Before Trial, chap 43. Need more forms to help you every step of the civil litigation process? Check out CEB’s California Civil Litigation Forms Manual.

Other CEB blog posts you might find interesting:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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