Fortune Favors the Prepared Lawyer: The Benefits of a Trial Plan at the Class Certification Stage

The latest iteration of Federal Rule 23 acknowledges the importance of the “close look.” Under the 2003 Amendments to Rule 23, it is no longer permissible to take a “certify now, ask questions later” approach. Compare Dec. 1, 1998 Amendment to Rule 23(c)(A) (providing that certification order “may be conditional”) with Dec. 1, 2003 Amendment to Rule 23(c)(A)(1) (deleting reference to conditional certification). Rather, plaintiffs must show at the class certification stage that class-wide proof of common issues exists. As the Advisory Committee noted, “an increasing number of courts require a party requesting class certification to present a 'trial plan' that describes the issues likely to be presented at trial and tests whether they are susceptible to class-wide proof.” Advisory Committee Notes to 2003 Amendment to Fed. R. Civ. P. 23, subdiv. (c) ' 1. Forcing plaintiffs to articulate a realistic trial plan may be a valuable tool for educating the courts (and the parties) as to which cases are doomed to splinter into an endless stream of mini-trials.