The folks over at Mayer Brown’s Guideposts have a new post entitled “To Bifurcate or Not to Bifurcate,” discussing whether it is strategically wise for defendants to take advantage of the bifurcation procedure that exists for punitive damages trials in many states, including California.  (See Civil Code section 3295(d).)

The post observes that many defense lawyers prefer not to bifurcate the issue of punitive damages into a separate phase of trial.  Many defense trial lawyers prefer to avoid a second round of closing arguments before a jury that has already rejected the defendant’s arguments on liability and found that the defendant acted with malice. 

As Guideposts points out, however, the second phase of trial presents an opportunity for a defense to present evidence that cuts against the need for punitive damages.  Such evidence may not have been relevant to the issues of liability, but may become relevant during the second phase.  For example, evidence of subsequent remedial measures, changes in corporate culture, or penalties already imposed for the same conduct may persuade the jury that punishment is unnecessary, or that only a small punishment is warranted.

When we touched on this issue in one of our early posts back in 2008, we noted that some California lawyers take the position that when a trial is bifurcated pursuant to section 3295(d), the only relevant evidence for the second phase of trial is evidence of the defendant’s financial condition.  That argument doesn’t make much sense, given that the jury’s task in the second phase is to evaluate the reprehensibility of the defendant’s conduct.  The jury should be able to consider any evidence relevant to the issue of reprehensibility, even if such evidence was not relevant to any issue during the first phase of trial. 

Unfortunately, California cases have never squarely addressed that issue.  The unpublished opinion we discussed back in 2008 discussed the fact that the defendant presented mitigating evidence during the second phase of a bifurcated trial.  But we’re still waiting for a published California opinion to address this issue and put to rest the notion that the second phase should focus entirely on the defendant’s financial condition.