8 Things to Consider Before Opposing a Motion to Consolidate

In response to a plaintiff’s motion for consolidation, the court can combine two or more separately filed lawsuits for simultaneous disposition. This promotes efficiency, but there are very big downsides for a defendant in a consolidated case. Here are 8 things defense counsel should consider when faced with a motion to consolidate.

1.    The possibility that plaintiffs’ actions may be tried more quickly and less expensively if they are consolidated.
2.    The likelihood that, if consolidation is defeated, some plaintiffs may be discouraged from independently pursuing their claims.
3.    The danger that harmful evidence will be admitted during a consolidated trial that might not have been revealed if the actions had been tried separately.
4.    The possibility that counsel will be forced to take part in hearings or depositions unrelated to the client’s case.
5.    The risk that the sheer number of claims may cause the jury to infer that the defendant did something wrong.
6.    The risk that the jury might become inflamed by the defendant’s causing harm to so many and award punitive damages.
7.    The risk that many weak cases against the defendant may be enhanced by a few strong cases.
8.    The possibility that, with the cases consolidated, defense counsel may be able to settle them more easily and for less money by making a lump-sum settlement.

Defense counsel should also consider arguing the unfairness of requiring unrelated plaintiffs to present individual claims in a combined proceeding against a single defendant.

Get guidance on consolidation procedures in CEB’s California Civil Procedure Before Trial §§43.2-43.62. On the strategic considerations for trial efficiency, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 1.

Other CEBblog™ posts you may find useful:

• When to Pick Up a Scalpel and Sever Your Case
• Mining for Gold in Medical Records: Five Tips for Defense Counsel
• Defendants: Reject §998 Settlement Offers at Your Peril

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