When 10 Trials Are Better than 1000: An Evidentiary Perspective on Trial Sampling

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In many mass tort cases, individual trials are simply impractical.
Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment
discrimination suit that the Supreme Court reviewed
last Term. With over 1.5 million women potentially involved in the
litigation, the notion of holding individual trials is fanciful. Other
recent examples of the phenomenon include the In re World Trade
Center Disaster Site Litigation
and the fraud litigation against light
cigarette manufacturers, in which Judge Weinstein colorfully noted
that any “individualized process . . . would have to continue beyond
all lives in being.”

Faced with an unserviceable number of plaintiffs, courts have
proposed sampling trials: rather than litigating every case, courts
would litigate a small subset and award the remaining plaintiffs
statistically determined amounts based on the results. But while
sampling is standard statistical practice and often accepted as
evidence in other legal contexts, appellate courts have balked—
based on due process concerns—at the notion of court-mandated,
binding trial sampling.

Despite this appellate reluctance, the controversy continues
unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed
“bellwether trials”) to induce settlement, and
a few brave appellate courts, including the Ninth Circuit in Dukes,
have even hinted at an increased receptivity to sampling. Given that
trial courts have few practical alternatives, one wonders if it is just a
matter of time before their appellate brethren recognize the necessity
of sampling.

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