Under current New York trial practice in some courts in the State, personal injury and medical malpractice trials are “bifurcated” into two separate “mini” trials.  This policy is not one of the legislature; rather, it is a judicial policy which is thought to promote efficiency in the courts, and to prevent jury passions from entering into deliberations.  To illustrate, in a personal injury action, bifurcation first results in a “liability” trial.  Here, the plaintiff must establish that the defendant was legally liable for the plaintiff’s accident.  This entails demonstrating that the defendant had a duty to the plaintiff, that the defendant breached that duty, and further, that the breach was a proximate cause of the plaintiff’s accident.

If the jury decides that the defendant is not legally liable, the trial ends, before the jury is even aware of the injuries suffered by the plaintiff.  If, and only if, the jury decides that the defendant is liable, does the trial proceed to the second phase, in which damages are ascertained by the jury. The rationale for providing a jury trial is that in our system of justice, a jury of one’s peers is deemed to be the most reliable means of ascertaining the guilt or innocence of a party.  The folly of “bifurcating” a personal injury or medical malpractice trial into two eviscerates the very rationale for having a jury in the first place.

Imagine that an ice cream truck runs a red light and hits a child, causing the child to become quadriplegic.  In those courts in which bifurcation is the prevailing policy, the jury will not know of the child’s grievous injuries unless and until it finds that the ice cream truck company is liable.  This is more than manifestly unfair to the child.  It is a perversion of justice.  It is unconscionable for the jury not to know of the child’s injuries during early phases of the trial.

While the courts are congested, and no one would argue that efficiency is important, the reality is that many jurors will choose to “go home” rather than sit through another week or more of trial testimony.  Why is it that in a bifurcated trial the damages portion is not tried first?  Would that also not promote the desired “efficiency,” since if there were no cognizable injury, there would be no need for a liability trial?  The explanation appears to be that the Courts have made the legislative decision that it is necessary for them to “weed” out cases on the basis of questionable liability.

This policy, although not in itself irrational, fails to recognize that it is simply not a proper function of the Court to take it upon itself to separate what are essentially inseparable legal and factual issues.  This is true even if the motivation is to ease court congestion. Further, the policy usurps the function of the legislature. What would be a proper function of the Court would be to determine the legitimacy of such a measure were an identical measure enacted by the legislature.

The trial of the liability portion first and as a prerequisite to the jury learning of the injury is arbitrary and unfair and should be abolished.  Every plaintiff who has suffered under this misguided policy has been permanently and unfairly harmed. Just as the method of evoking a response in a political poll can affect the result, so too can dictating and circumscribing the method and timing in which trial evidence is adduced.  It is not for the courts, however respectful we must be to them, to appropriate such an important aspect of jury trial from the jury itself.