The Myth
Quick! What are the rules for bifurcation of personal injury trials in the First and Second Departments? If you answered that the former defaults to unification and the latter bifurcation, you’d be espousing the “unsupported legal legend” that the First Department, by mandating unified trials as a rule, anomalously rejects the “rule” of the remaining Department sin favor of bifurcation. In truth, there is no such divergence. The actual rule is that set out in 22 NYCRR Section202.42(a), which instructs that, “judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.” Thus, bifurcation is the rule nowhere but is the highly encouraged policy everywhere—even in the First Department.
In practice, however, the mythology of differing bifurcation rules has prevailed, both among litigants and courts. This confusion likely stems from the Second Department’s 1979 rule (formerly 22 NYCRR Section 699.14[a]) directing that trials be bifurcated unless “exceptional circumstances” and “good cause” necessitated unification. Although this rule was supplanted by the uniform directive of 22 NYCRR Section 202.42(a) in 1986, practitioners have continued to spread the antiquated notion that bifurcation is the rule in the Second Department and the exception in the First.
This misapprehension has led to easily avoidable missteps. For instance, if we, as appellate monitoring counsel, proposed making a pretrial motion to bifurcate in the Bronx, some defense counsel would protest that such a motion would unnecessarily agitate the court because of the ironclad unification “rule” and would press our shared client to reject the proposal. Conversely, defense counsel would often be astonished when a Brooklyn or Queens court ordered a unified trial and would advise their clients that such a ruling would be reversed on appeal pursuant to the bifurcation “rule.”
The solution, of course, is to discard the myth and heed the directive of 22 NYCRR Section 202.42(a). Advising our clients of the correct bifurcation rule enables them to better evaluate risk and spares us, as counsel, the uncomfortable task of explaining to an ill-advised client why a plaintiff counsel’s “frivolous” unification motion was granted by the trial court and affirmed by the Second Department.
But knowing the rule is not enough—defense counsel must also advocate it. Just as some trials in the Second Department are not bifurcated, many in the First Department need not be unified. As a general matter, trial courts are wont to take the procedural path of least resistance, which means that if both parties in a Bronx trial agree that unified trials are the default, then unified that trial will be. See JMW 75 v. Debs, 59 Misc.3d 32, 33 (App Term 2018) (“Unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course and, in fashioning the basis upon which a particular controversy will be resolved, they may stipulate away statutory and even constitutional rights”).A trial judge will have no interest in overruling the parties’ stipulation, however erroneous or misguided. It is, therefore, incumbent upon defense counsel not only to demonstrate that bifurcation will simplify the issues, maximize fairness, increase efficiency, decrease waste of strained judicial resources, and facilitate settlement in most cases but to disabuse trial court judges of the fallacy that an inflexible and Department-dependent rule governs the decision to bifurcate.
Our Judiciary Debunks the Myth
Fortunately, our judiciary has begun to affirmatively correct the prevailing mythos. New York County Supreme Court Judge Frank P. Nervo recently provided some much-needed clarity on the subject, dispelling the fable of divergent bifurcation rules and cogently observing that bifurcation is a discretionary, albeit encouraged, policy:
For many, many years there has circulated an unsupported legal legend that “there is an Order that trials in the Second Department are bifurcated and trials in the First Department are unified.” While no such Order has ever existed, whether by court administration or any appellate court, that myth had been inexplicably revered for at least 35 years to this court’s knowledge. Indeed, the Appellate Division, First Department has only encouraged bifurcation. Faber v. New YorkCity Housing Authority, 227 A.D.2d 248 (1st Dept. 1996).
Winkler v. Halmar International, N.Y. Cnty. Index No. 150694/2014 (Dec. 1, 2022).
Judge Nervo’s correct reading of the bifurcation rule has already taken root in the Appellate Division, Second Department, which has recognized that:
Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases.
Castro v. Malia Realty, 177 A.D.3d 58, 66 (2d Dep’t 2019)
Public Policy Also Favors Bifurcation
In addition to the foregoing, elimination of the post-pandemic backlog provides a powerful public policy incentive for the trial courts to further weigh the relevant facts and circumstances in favor of bifurcation as an efficiency measure, especially in cases involving comparative fault or multiple tortfeasors or third-party actions. The establishment of the parties’ respective liability at the first phase nearly always breaks any negation stalemate and obviates the necessity of a prolonged trial with a damages phase (thus reducing the strain on precious court resources).
Strategic Benefits
There is an additional strategic benefit to be gained for defendants litigating with full cognizance of all of the foregoing. Like any discretionary matter, an improvident decision to unify a trial may constitute an abuse of discretion. See Loncz v. Blagrove, 254 A.D.2d 735 (4th Dep’t 1998). Thus, even where a trial court is disinclined to grant a defendant’s meritorious bifurcation motion, seeking such relief preserves the issue for appeal in the event of an adverse verdict. There is no downside to such an application; if successful, it protects the jury’s impartiality on the issue of liability and, if unsuccessful, it raises another basis for overturning an irrational, compromise or excessive verdict.
Conclusion
As it is now clear that trial judges in every New York personal injury action bear the responsibility of weighing the merits of bifurcation on a case-by-case basis, defense counsel have a corollary responsibility: to expunge the bifurcation rule fallacy from the ranks of revered legal legend and relegate it to the dustbin of legal anachronism. It is imperative that entitlement to bifurcation not be ceded without a fight, lest civil trials needlessly continue to be unified and defendants unfairly prejudiced by the importation of irrelevant but inflammatory damages evidence into their liability cases. The law, efficiency, fairness, and public policy are on our side, we need only remind the bench and bar.
Initially published in the NYLJ
