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Posted On October 12, 2018

What Are Bellwether Trials and How Might They Impact Your Injury Case?

When mass tort litigation is expected with thousands of plaintiffs, a sampling of cases is sent for bellwether trials. The outcomes of these trials act as a litmus test to determine the strength of the cases. When the court sides in favor of Bellwether plaintiffs, the defendant may opt to offer settlements with remaining plaintiffs instead of going to trial.

History of the Term Bellwether

The term “bellwether” comes from what seems an unlikely place. Back in the 13th century, farmers needed a way to keep track of the sheep in their flocks. They would determine which sheep in their flock was the “wether.” The wether would be a castrated male sheep that the flock would follow around. A bell was tied around the wether’s neck. When the farmers needed to locate their sheep, they would listen for the bell, and head in the direction of the ringing bell and expect to find their flocks. Eventually, the term bellwether was used as an insult. However, in the modern age, the term became used in the legal system to describe an event that would predict a future trend.

Tied to Multidistrict Litigation

Court calendars are subject to backlogs. When multiple personal injury cases against one defendant are spread out throughout district courts, the possibility of multidistrict litigation (MDL) comes into play. The bellwether trial process is closely associated with MDL, which is a consolidation of legal cases from multiple districts to one venue. If a mass number of civil actions is expected against one defendant, resorting to bellwether trials can speed up litigation and relieve the burden of crowded court calendars.

Once an MDL has been formed, its cases are relocated to a “transferee” court where pretrial proceedings are held. These are where either side can make motions whether to dismiss, send back to the original court or settle. The judge of the transferee court, along with the involved attorneys are in charge of choosing cases that will be sent forward to bellwether trials. There is no exact number of cases that are chosen for this process. The intent of the selection process is to provide a sampling of cases that represent the spectrum of all the cases combined.

In the past, there were attempts to “bind” bellwether verdicts to external cases to directly determine the verdicts of those cases. That is no longer the case with current MDLs. While an MDL may set precedent, it will not be directly tied to the proceedings of trials in related cases.

How are Bellwether Trials Selected?

MDLs are selected by an MDL panel of seven judges who oversee different circuit courts or courts covering different jurisdictions, including a federal court of appeals or state courts. The panel can choose to create an MDL when there are numerous similar cases across their districts.

Several options are available for judges to select cases that are best suited for bellwether trials. Attorneys from both sides of the argument are usually involved. The reason behind this logic is that they will work hard to ensure their cases are well-represented. After all, they have a big stake in the outcome of their cases. The cases are categorized based on common issues and legal questions.

Once the categories are created, the judge and attorneys further analyze the cases to create a pool of representative cases that cover a range of issues. This is done in a way that is similar to how attorneys alternate with selecting jurors during jury selection. When the process of selection is complete, a formal “transfer order” is created. Pretrial proceedings are conducted at the MDL venue. Cases that are not dismissed or settled are then sent back to their original district to go through an actual trial.

Benefits of Bellwether Trials

There are multiple benefits to bellwether trials. They:

  • Help clear court calendars
  • Create precedents for pending cases
  • Help law firms create trial packages, a set of standards that other attorneys can use for their own cases
  • Allow legal teams to practice their techniques

However, one of the most important benefits of bellwether trials is their ability to convince large companies to offer settlements to those injured by their dangerous products. This is usually more financially beneficial to the company instead of having to pay for legal representation for thousands of cases. And for those filing personal injury suits, the risk of a company filing bankruptcy to prevent going to court can also be reduced. Currently, there are proceedings regarding opioid lawsuits that are potentially moving toward the MDL and bellwether trial process.

 

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