Bifurcation Unbound

The bifurcation of issues in a federal trial under Federal Rule of Civil Procedure 42(b) offers many benefits for both litigants and the judiciary. One of the greatest potential benefits of issue bifurcation is increased judicial efficiency. Frequently the jury's disposition of the first issue will obviate the need to try the remaining issues. Despite this efficiency potential, bifurcation is controversial.

Historically, the opponents of bifurcation have leveled three primary criticisms against bifurcation: (1) that it skews verdict outcomes in favor of defendants, (2) that it infringes on the role of the civil jury, and (3) that it creates a sterile and unnatural trial atmosphere. The critics have carried the day with a majority of federal judges, who employ a presumption against issue bifurcation and bifurcate infrequently. This Article scrutinizes the reasons underlying the presumption against issue bifurcation and concludes that the presumption is unjustified. Accordingly, this Article proposes changes to Rule 42(b) that would eliminate the presumption against issue bifurcation and communicate to federal judges two important messages: (1) bifurcation is not antithetical to the role of the civil jury or justice, and (2) in the long run, analyzing each case to identify issues to try separately should improve judicial efficiency.