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

By Will W. Sachse

By now, most class action lawyers are familiar with the argument that a court must take a “close look” during the class certification stage in order to ensure that certification is indeed practicable and appropriate. Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (reversing certification decision for failure to assess “how a trial on the merits would be conducted”). This “close look,” or “rigorous analysis,” is not meant as an opportunity to prejudge the merits of the case, but is instead intended to give the court a realistic sneak preview of what trial of the issues will entail.

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.

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