Consolidation can be a useful efficiency technique because it allows the court to combine two or more separately filed lawsuits for simultaneous disposition. This efficiency is not without danger—consolidation may produce an incomprehensible case that the jury can’t handle fairly or understand.
The basic requirements for consolidation are that
- the suits involve a common question of law or fact, and
- their combination won’t unfairly prejudice any party.
For example, in Todd-Stenberg v Dalkon Shield Claimants Trust (1996) 48 CA4th 976, the court affirmed judgments for three plaintiffs in consolidated personal injury cases involving use of an intrauterine device made by the same manufacturer; the court found the cases had common issues and undue confusion or prejudice was unlikely to result.
In evaluating the wisdom of moving for consolidation, plaintiff’s counsel should consider the following:
- The probability that a single case can be tried more quickly than a consolidated action.
- The possibility that the individual cases may, contrary to the usual assumption, affect each other adversely.
- The danger of being forced to share a prorata amount of a limited fund with plaintiffs in other actions.
- The likelihood that counsel will lose at least some measure of control that could otherwise be exerted over the proceedings.
- The risk that consolidating plaintiff’s action with a weaker claim will reduce the prospects for a successful verdict or a large judgment; or, conversely, the hope that a strong liability claim, while not producing substantial damages, will help weaker claims to receive larger damages.
- The risk that counsel will receive a lower fee if not selected to serve as lead counsel (if this interest conflicts with your client’s best interests, the client’s interests must, of course, prevail; you are a fiduciary).
- The possibility that counsel will be forced to take part in hearings or depositions unrelated to the client’s claims.
- The likelihood that combined multiple claims will prejudice the jury against the defendant.
- The overall savings in time and expense to counsel and clients.
- Whether a statute expressly provides for consolidation of the case (e.g., CCP §1250.240, permitting consolidation of condemnation actions relating to separate real property parcels located in the same county; CC §§3175, 3214, allowing consolidation of actions to enforce payment of construction claim after issuance of stop notices).
Some of these considerations won’t apply if the consolidation is limited to cases filed by the same plaintiffs’ attorney.
Generally, plaintiffs’ attorneys will move for consolidation only when they believe that the cases will be benefited, substantial time and expense will be saved, or the cases will come to trial sooner (e.g., if a case is entitled to preference, it can also advance the other consolidated cases to an earlier trial date). Although consolidation can save time and expense, the risk of prejudicial error is increased, and any reversal on appeal will probably apply to all the cases.
Get guidance on consolidation procedures in CEB’s California Civil Procedure Before Trial §§43.2-43.62. On strategic considerations for trial efficiency, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 1.
Other CEBblog™ posts you may find useful:
- 8 Things to Consider Before Opposing a Motion to Consolidate
- When to Pick Up a Scalpel and Sever Your Case
- Should You Make an In Limine Motion?
- Educate Before You Litigate
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