Gregory M. Sleet: Bifurcation and Litigation Inefficiencies

As patent litigation grows more complex, splitting jury trials into separate liability and damages phases has become increasingly commonplace. As grounds for bifurcating proceedings, courts often cite the need to avoid jury confusion and the interests of promoting judicial economy. But, as a recent decision by Chief Judge Gregory M. Sleet demonstrates, the bifurcation inquiry remains a fact-specific exercise, and is far from automatic.

On the topic of judicial economy, the Court noted that the damages phase of trial would consume “perhaps one day of a ten-day trial.” Balanced against the “time and judicial resources required to hold two separate trials,” the Court held that carving out the short damages presentation would lead to “duplicative” proceedings.

The Court also rejected the jury confusion point: “Through reasoned and considered presentation, the attorneys for each side may clarify and compartmentalize issues for the jury.” Indeed, the Court implied that parties’ should give juries more credit: “[T]his court regularly tries complex cases before juries and has found juries well able to keep separate issues separate, particularly with the aid of considered and cogent presentations by counsel.”
The message to litigators? Bifurcation is not always warranted. And, more importantly, keep it short and sweet.

Deutscher Tennis Bund v. ATP Tour Inc., C.A. No. 07-178-GMS (D. Del. June 23, 2008) (Sleet, C.J.).

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