The Case Against Case
Consolidation at Trial

BY Jill Leibold, Ph.D.

As court systems are tightening their belts under the continued strain of budget cuts and the backlog of cases awaiting trial, some courts have attempted to solve this problem by consolidating cases.  That is, for a single trial, multiple plaintiffs claiming personal injury of a similar nature (for example, all have contracted mesothelioma) bring their cases before a jury together, along with several defendants that the plaintiffs claim caused their injuries.  While the courts may believe this is a good solution to ease the logjam of cases and to encourage settlement, the consolidation process is rife with problems that affect the strength of a single  case among the many; how corporations individuate their cases with so many competing and similar interests at stake; and most importantly how jurors react to the evidence and parties. 

In jurors’ eyes, most individual cases are complex – they are hearing a week or more of new information, much of which they were unfamiliar with at the case outset.  Witness and expert testimony has to be understood and remembered, evidence encoded and recalled, liability and causation evaluated.  At the end of that new information overload, they need to understand the calculations of damages theories, remember the often-lengthy jury instructions and deliberate to a verdict using a form thick with unfamiliar terms.  Although jurors’ note taking helps tremendously in their recall of the case during deliberations, their comprehension level and ability to incorporate evidence into their decisions declines as the amount and complexity of information presented increases.  Regardless of whether one is a judge, lawyer or juror, all humans have limited cognitive and memory resources.  As a person’s cognitive demands increase, his/her ability to incorporate new information decreases and the likelihood that she/he would implicitly and unconsciously fall back on prior knowledge, experience or biases to fill in the blanks (and help ease the onslaught of new facts) increases.  Psychologists call the overload of working memory capacity “cognitive load.”  Once this level has been reached (and it can happen quickly – legal jargon alone is taxing, let alone a new subject like patents, asbestos medicine or pharmacological effects), people switch into a different level of processing information that is less conscious, less motivated, and less accurate.  This change impairs their ability to understand, store and effectively use evidence.  Decision-making and judgments decline significantly as information overload increases.  If this can happen in a single case brought by a plaintiff against one defendant, imagine the exponential and multiplicative effect of consolidating separate plaintiff cases against multiple defendants.

Cognitive Demand on Jurors Reduces Their
Ability to Understand and Make Valid Decisions
In consolidated cases, jurors hear information presented by multiple plaintiffs and multiple defendants – but the evidence by one plaintiff does not necessarily apply to the others and jurors are instructed to regard and evaluate each plaintiff’s case separately.   In actuality, these lines are quite blurred for jurors.  As the number of separate parties jurors hear from increases, and that must be considered narrowly (i.e., evidence for Plaintiff A only applies to Defendants Y, X and Plaintiff B’s evidence applies to Defendants X, Y, Z), jurors’ ability to recall information and to do it accurately decreases dramatically.  Think about the exponential effect of having three or more plaintiffs and five to 10 defendants.  Not only do jurors have to keep track and evaluate each side’s story, but track the evidence and storylines for separate plaintiffs at once.  In post-trial interviews, jurors frequently describe feeling overwhelmed with all of the information they have heard and with aligning it correctly to particular plaintiffs or defendants.

Experiencing a heavy cognitive load affects decision-making significantly.  New information is processed less effortfully and more mistakes are made.  In fact, one recent study showed that prior (and unrelated) perceived “bad acts” by a defendant increased jurors’ judgments of liability against the defendant as their cognitive load increased.  One can imagine jurors’ heightened negativity toward the defendant for unrelated past actions would also apply to (and increase) jurors’ calculation of damages as well.  In a related phenomenon, increased cognitive load also causes an increase in the reliance on stereotypes and pre-existing biases.  Cognitive load decreases people’s ability to suppress thoughts (i.e., judge’s instructions to “put it aside” or not to consider information) while at the same time the ironic rebound effect increases, whereby the thought to be suppressed actually creeps into the mind more than it would have otherwise.  In sum, not only does consolidation reduce jurors’ (and judges’) ability to learn, recall and properly use new information, but it also instigates reliance on stereotypes and reduces the ability to make effortful, accurate decisions.

Plaintiffs May Not Be Seen as Individual and Not Treated Separately
Not only are jurors asked to understand new and complex evidence and testimony, which reduces cognitive capacity, but in consolidated cases they are then encumbered with the added burden of keeping each plaintiff and each defendant separate.  This includes the distinct causation and liability issues involved in each separate case.  Unfortunately for defendants, if a plaintiff with a stronger case is consolidated with a plaintiff with a weaker case, this can give the weaker plaintiff a leg up, particularly if the stronger plaintiff presents his or her evidence/injury first.