Bellwether Trials: A Defense Perspective

Environmental torts such as chemical spills or groundwater contamination may result in hundreds or even thousands of lawsuits, often in multiple state and federal forums. Traditional judicial procedures are ill-suited to handle these sprawling actions. Devices for aggregating claims, like class actions, are often inappropriate as well. In these situations, courts and litigants may seek to break the deadlock by fast-tracking a manageable number of individual cases for discovery and trial—in so-called "bellwether" proceedings—with the hope that the outcomes will shed light on the large number of cases waiting in the wings.

Although most discussions of bellwether proceedings take the plaintiffs' or the judge's perspective, defendants stand to gain or lose just as much from the process. Indeed, because defendants are guaranteed repeat players when it comes to litigating a mass tort, they face unique considerations in deciding whether and how to participate. Defendants