In response to a plaintiff’s motion for consolidation, the court can combine two or more separately filed lawsuits for simultaneous disposition. This promotes efficiency, but there are very big downsides for a defendant in a consolidated case. Here are 8 things defense counsel should consider when faced with a motion to consolidate.
- The possibility that plaintiffs’ actions may be tried more quickly and less expensively if they are consolidated.
- The likelihood that, if consolidation is defeated, some plaintiffs may be discouraged from independently pursuing their claims.
- The danger that harmful evidence will be admitted during a consolidated trial that might not have been revealed if the actions had been tried separately.
- The possibility that counsel will be forced to take part in hearings or depositions unrelated to the client’s case.
- The risk that the sheer number of claims may cause the jury to infer that the defendant did something wrong.
- The risk that the jury might become inflamed by the defendant’s causing harm to so many and award punitive damages.
- The risk that many weak cases against the defendant may be enhanced by a few strong cases.
- The possibility that, with the cases consolidated, defense counsel may be able to settle them more easily and for less money by making a lump-sum settlement.
Defense counsel should also consider arguing the unfairness of requiring unrelated plaintiffs to present individual claims in a combined proceeding against a single defendant.
Get guidance on consolidation procedures in CEB’s California Civil Procedure Before Trial §§43.2-43.62. On the 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:
- When to Pick Up a Scalpel and Sever Your Case
- Mining for Gold in Medical Records: Five Tips for Defense Counsel
- Defendants: Reject §998 Settlement Offers at Your Peril
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