Roy FuttermanBy Roy Futterman, Ph.D., Director, DOAR Litigation Consulting

As class certification hearings in labor and employment cases and other types of class action litigation have become more like mini-trials in the wake of recent case law, strategies that used to be applied at the jury trial phase have moved to the class certification stage.  Both the plaintiff and defense sides of class action cases are approaching class certification hearings as if they were short, compact trials and are using more sophisticated ways of delivering their arguments and evidence to the judge.

This is particularly true with the use of trial technology at hearings.  Both state and federal court judges have become increasingly comfortable with trial technology for projecting evidence in their courtrooms and have been more welcoming of it in hearings.  This is good news in class action litigation where graphics can be used to create easily understandable visuals out of often complicated and voluminous statistical data. 

The defense can take advantage of being able to use graphics at a certification hearing to simplify complex data, or conversely, to show the complexity of the case to defeat class certification.  In particular, the defense can create graphics depicting such important issues as how the named plaintiffs are different from the rest of the putative class, and how there are no real common issues, but instead, a myriad of diverse individualized issues. 

As to testimony, courts are allowing fact and expert testimony, which may be live or via video clips.  In the same way that mock jury trials and focus groups are done in advance of jury trials, a mock bench trial can also be done in advance of a hearing to try out the arguments, evidence and graphic elements.  This provides the opportunity for the defense to alter strategy as needed in advance of the certification hearing.

The strategic re-thinking on how to approach class certification hearings is happening quickly, and defense counsel must be prepared at an early stage to “try” their case.