A Hawaii Attorney’s Guide to Bifurcation of Trials

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Hawaii trial courts, in certain circumstances, will allow a litigant to divide his trial into two parts.  This is called “bifurcating” the trial.  Hawaii Rules of Civil Procedure (HRCP) Rule 42(b) governs bifurcation and provides as follows:

(b) Separate trials.  The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as given by the Constitution or a statute of the State or the United States.

HRCP Rule 42(b).

There are a number of scenarios in which a litigant would want a bifurcated trial.  One such scenario is where a plaintiff sues two or more defendants and each defendant disputes its liability to the plaintiff.  In a bifurcated trial, the first trial will proceed on the defendants’ liability to plaintiff and the plaintiff’s damages.  If at the first trial, the defendants are found not liable to the plaintiff, there is no second trial.  However, if at the first trial, the defendants are found liable, a second trial will occur only on the issue of apportionment of fault between the remaining defendants.  Furthermore, the second trial will occur without the involvement of the plaintiff.  Under such circumstances, the Court may permit bifurcation so that the issue of the apportionment of fault between the defendants will not delay the plaintiff’s ability to recover for his or her damages.

Although Rule 42(b) provides the means for a trial to be bifurcated, the trial court is the sole decision maker of whether the trial is bifurcated.  “[T]he decision to separate is within the sound discretion of the trial court and is properly granted where the court concludes that such act will prevent undue delay and otherwise promote the interests of justice.”  Sanders v. Point After, Inc., 2 Haw. App. 65, 70, (1981).  “[T]he moving party has the “burden of proving that the bifurcation will promote judicial economy and avoid inconvenience or prejudice to the parties.”  Clark v. IRS, 772 F. Supp. 2d 1265, 1269 (D. Haw. 2009) (quoting Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992)).

An example of bifurcation is Kaina v. Gellman, 119 Haw. 324, 326 (Haw. App. 2008), where the Court bifurcated a plaintiff’s trial against two defendants.  There, the plaintiff brought an action against a doctor for medical malpractice, and against the employer hospital for negligently hiring the doctor.  Id.  While the parties were ready for trial on the claims against the doctor, the parties were not ready for trial on the claims against the hospital employer.  The Court bifurcated the trial, reasoning that if the plaintiff lost her case against the doctor, “the likelihood of a second trial is nil since she would still – or the plaintiff would still have to prove the medical negligence and causation, and I think that will then at least permit this woman who has lost her son to have her day in court on the essential issue without a prolonged delay. . . .”  Id.