December 17, 2010
Bellwether Trials and "Sabotage"
Cue the music.
Drug and Device law blog has a post about plaintiffs sabotaging bellwether trials when the cases picked to be bellwethers are not to their liking. As I have written elsewhere, the informational bellwether processes used by courts are flawed. In particular, letting either party pick the bellwether trials is a recipe for a biased sample. For more on what a rigorous and appropriate method of informal bellwether trials would look like, see my piece Rough Justice.
The folks over at D&D, because they are defense lawyers, propose that they get to pick the bellwethers if the plaintiff backs out and his case is dismissed with prejudice. This makes no sense, of course, because it would just skew the sample in defendant's favor. The only way to do this is for the court to randomly select cases, including back up cases. This way there is a sample of cases if plaintiff's case is dismissed for failure to prosecute, as apparently happened in the FEMA Trailers case, or if defendants settle the bellwether cases they don't want to see tried.
H/T Torts Prof Blog.
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