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25 Rev. Litig. 691 (2006)
Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process

handle is hein.journals/rol25 and id is 709 raw text is: Segmenting Aggregate Litigation: Initiatives and Impediments for Reshaping the Trial Process Edward F. Sherman* I. INTRODUCTION ........................................................................ 691 II. NON-BINDING TRIAL RUNS ..................................................... 694 III. BELLW ETHER CASES ............................................................... 696 IV. SAMPLE TRIALS AND EXTRAPOLATION ................................... 698 V . B IFURCATION .......................................................................... 702 VI. HYBRID CLASS ACTIONS ......................................................... 706 V II. PHASED TRIALS ....................................................................... 709 VIII.CLAIMS PROCEDURES .............................................................. 714 IX . C ONCLUSION .......................................................................... 717 I. INTRODUCTION The paradigm for the American civil trial is a single event in which witnesses and evidence are presented seriatim in a continuous proceeding. ' American trials are generally before juries, and lengthy recesses or continuances are to be avoided because jurors cannot be expected to be on call, remember evidence, or be insulated from * Moise F. Steeg, Jr. Professor of Law, Tulane University Law School. AB, 1959, Georgetown University; MA, 1962, MA, 1967, The University of Texas; LLB, 1962, SJD, 1981, Harvard University. Edward Sherman served as Dean of Tulane Law School from 1996 to 2001, after 19 years on the faculty of The University of Texas School of Law where he was the Edward Clark Centennial Professor of Law. After law school, he clerked for a federal judge and practiced in a Texas law firm. He has taught at Harvard Law School (Teaching Fellow, 1967-69), Indiana University School of Law (1969-77), Trinity College, Dublin (1973-74), Stanford Law School (summer 1977), University of London (1989), Chuo University School of Law, Tokyo (1995), and University of New South Wales, Sydney, Australia (2002). Professor Sherman is co-author of casebooks on civil procedure, complex litigation, and dispute resolution. He has been General Counsel of the American Association of University Professors and Chair or Reporter of ABA Task Forces on Offers of Judgment, Class Action Litigation, and Asbestos. He worked on a U.S.A.I.D. project to write a new Civil Procedure Code for Vietnam. 1. Edward F. Sherman, The Evolution of American Civil Trial Process Towards Greater Congruence with Continental Trial Practice, 7 TUL. J. INT'L & COMP. L. 125, 126 (1999) (Whereas an American trial is a continuous, single 'snapshot in time' event, continental proceedings may be composed of a number of hearings held over an extended period of time. ).

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