Fortune Favors the Prepared Lawyer: The Benefits of a Trial Plan at the Class Certification Stage

The latest iteration of Federal Rule 23 acknowledges the importance of the “close look.” Under the 2003 Amendments to Rule 23, it is no longer permissible to take a “certify now, ask questions later” approach. Compare Dec. 1, 1998 Amendment to Rule 23(c)(A) (providing that certification order “may be conditional”) with Dec. 1, 2003 Amendment to Rule 23(c)(A)(1) (deleting reference to conditional certification). Rather, plaintiffs must show at the class certification stage that class-wide proof of common issues exists. As the Advisory Committee noted, “an increasing number of courts require a party requesting class certification to present a 'trial plan' that describes the issues likely to be presented at trial and tests whether they are susceptible to class-wide proof.” Advisory Committee Notes to 2003 Amendment to Fed. R. Civ. P. 23, subdiv. (c) ' 1. Forcing plaintiffs to articulate a realistic trial plan may be a valuable tool for educating the courts (and the parties) as to which cases are doomed to splinter into an endless stream of mini-trials.

There is now even more compelling case law holding that a viable trial plan is required before a class may be certified, although the case law suggests that the ultimate responsibility for formulating such a plan rests with the trial court certifying the class. Most recently, the Supreme Court of Texas reversed a class certification order where neither the trial court nor the plaintiffs formulated a trial plan. See State Farm Mut. Automobile Ins. Co. v. Lopez, ___ S.W.3d ___, 2004 WL 2754648, at *6 (Tex. Dec. 3, 2004). Lopez followed on the heels of a previous Texas Supreme Court case, Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000), in which the court “reject[ed] this approach of certify now and worry later,” instead finding it “improper to certify a class without knowing how the claims can and will likely be tried.” Id. at 435. The Bernal plaintiffs suggested a trial plan that largely consisted of proof by expert testimony, models, formulas, and extrapolation. Id. at 437. Although this may have been an “expeditious” manner of proceeding with trial, “[t]he plaintiff must prove, and the defendant must be given the opportunity to contest, every element of a claim.” Id. at 438. The court recognized that the substantive proofs needed to show causation and damages ' which could not be altered by a procedural device ' required individual determinations. Id. Accordingly, class treatment was impossible.