When the Class Goes to Trial: Lessons From the Frontlines

Guest Authors: Nick Rosinia and Megan Delurey

---

For most of my career, it was virtually unheard of for a class action case to reach trial. The class certification stage has been generally viewed by both sides of the bar as the primary battleground. Certify a class, and you can practically count on a settlement to follow. Lose class certification, and it is time to appeal or move on to the next case.

But that trend is changing. Over the past several years, we have seen an increase in the number of our class-action cases reaching trial. In 2019, for example, we brought a Telephone Consumer Protection Act (TCPA) class case to trial against ViSalus, a multi-level marketing company—which ultimately produced a record $925 million damages award. In 2023, we tried an eight-week liability issues class case against the Warren Buffett-owned PacifiCorp, which resulted in a jury finding PacifiCorp responsible for causing four wildfires across Oregon. And earlier this year, a Washington jury delivered the first-ever verdict against an online social casino, High 5 Games, in our class-action case there and awarded the class $24,940,366.15.

And my firm’s cases are certainly not the only class-action trials in recent history. Last year, for example, Susman Godfrey tried a class action against the NFL over its “Sunday Ticket” package, resulting in a nearly $4.8 billion award.

Class action trials are a rarity for a reason. For one, they have very high stakes. Trying a case against an entire class is often a bet-the-company gamble. For example, following our verdict against ViSalus, the company declared bankruptcy. PacifiCorp, too, has faced downgrades of its credit rating, and has run to the Oregon legislature in hopes of escaping the full weight of the jury’s verdict.

For another, many class action firms don’t expect their case to go to trial, mistakenly thinking that class certification is the whole ballgame. When a defendant digs their heels in, these firms are caught off guard (which usually means they settle cheap). Plaintiffs’ firms who are aware of this trend are increasingly opting to have dedicated trial teams so that they can maintain their leverage.

Along with this new approach has come a new way to try cases. There are a number of differences between class-action trials and run-of-the mill trials. While the broad nuts and bolts of trial are the same—openings, closings, direct and cross examinations—there are a number of considerations to be aware of when trying a class-action case. What are those and what do plaintiffs’ lawyers need to think about when facing a class-action trial?

Jury Instructions/Verdict Form: As with any trial, both parties will exchange proposed jury instructions and verdict forms before trial. In the class context, however, it is important to carefully consider how the jury instructions and verdict form will refer to the class and reflect the class issues to be decided. Will the jury instructions provide the class definition? Will those instructions identify the size or makeup of the class? Will the verdict form include separate findings for the class representative(s) and the remainder of the class? Will the verdict form require a finding in favor of the entire class? Or can the jury find in favor of some of the class and not other class members?

These are significant issues, the complexity of which often depend on the complexity of the case. For example, in our recent trial against High 5 Games, the Court gave a specific instruction explaining class actions and defining the certified class, but did not specifically quantify the class or go into further detail. The verdict form had just four questions—two for the jury to enter the class representative’s damages and two for the jury to enter the remaining class’s damages.

In our PacifiCorp trial, the jury instructions defined a class action and explained the difference between a “class” question and a “class representative” question (for damages determinations). Hotly contested, however, was whether the verdict form would be phrased to allow the jury to find the fires caused harm to some but not all of the class members. The Court ultimately adopted an approach that required an all or nothing finding, but not before entertaining novel proposals for how the jury would find for part of the class—and how it would memorialize those findings.

Because the jury instructions and the verdict form are what the jury will use to guide and reach their decision, what they contain and how easy they are to follow are crucial factors to the outcome of the trial. You do not want to find out after trial that the jury wanted to find for the class but misunderstood the instructions or the verdict form.

Voir Dire/Choosing a Jury: Once trial begins, one of the first decisions is when and how to introduce the notion of a class action to the jury. The general wisdom is to directly address the issue during attorney-led voir dire, so you can determine whether potential jurors have preconceived biases about class actions or class action lawyers—and can explore those biases with prospective jurors. If you are in federal court and may not get sufficient (or any) time for attorney-led voir dire, it is important to submit a few class-specific questions for the judge to ask. You do not want to conclude voir dire without having explored this issue in some depth.

Class Witnesses: Next, once the evidence begins, it’s important to know who will testify on behalf of the class, when they will testify, and whether doing so presents credibility challenges on cross. For example, if you have five class representatives, should each representative testify? Where should that testimony fall in the order of evidence? And do you need any absent class members to testify? If so, are they prepared for cross examination?

These decisions are generally driven by what you are required to prove and which witnesses have personal knowledge of those issues. For example, in our PacifiCorp trial, the jury was asked to determine PacifiCorp’s liability for starting the four fires and the class representatives’ individual damages. We therefore called all 17 class representatives to testify so that we could prove their damages, but also called a number of absent class members who were eyewitnesses to fire ignition and fire spread. Rather than present the class representatives’ testimony at the end of trial, as you might if proving damages last, we chose to intersperse their testimony throughout the trial to remind the jury at regular intervals of the human impact of PacifiCorp’s fires. We then called the eyewitnesses successively during the fire causation portion of our case, but not before preparing each for cross-examination about the fact that they were class members and would allegedly “benefit” from a successful trial. This is not to say what we did was right or should be emulated—it just offers one example of how we strategically juggled the testimony of 20-plus class members across a long trial.

Fighting the “Lawyer-Driven Litigation” Narrative: Once the trial is underway, you may also encounter a “lawyer-driven litigation” narrative from the defense. It generally goes like this: Greedy class-action lawyers are behind this case, and have brought it for personal gain. This is most often presented during damages-only trials, but it can also be deployed as an argument against contested causation, for example.

Combating this narrative often depends on the degree to which the defense has leaned into it and your own personal style, but like most things in trial, it generally comes down to credibility. A trial lawyer’s task is to be the most credible lawyer in the courtroom. Juries (just as judges) see and appreciate credibility, and maintaining it throughout trial often speaks for itself. And of course, you can always point out in closing that rather than mount a defense based on the evidence, all the defense could muster was to blame the plaintiffs’ lawyers.

Proving Class-wide Damages: Another quirk of class-action trials is that the jury is often asked to decide damages for the entire class without ever meeting the class members or hearing their stories. This is less of an issue in smaller consumer class actions than, for example, wildfires, but it is important to consider how you will prepare and introduce your class-wide damages evidence in a compelling fashion. Will it come in through an expert or two? Through a defense witness? Can you compel that defense witness to appear? Will it come in through the plaintiffs? And what documents do you need to ensure are admissible?

For example, in our recent social casino class case, the damages evidence largely came from in-app purchases recorded through Google, Meta, and Amazon. Obtaining and authenticating logs of that activity was crucial to proving damages, and became the primary battleground in advance of trial. By contrast, in our PacifiCorp case, proving damages was a plaintiff-by-plaintiff effort supported by expert testimony valuing real and personal property losses.

Regardless, given the high stakes and damages that define class-action trials, ensuring you have an airtight plan for proving damages and the admissible evidence to do so is crucial.

Including Class Members in the Trial: Class trials also present unique logistical issues. For example, class members often wish to watch or engage with the trial. They may want to attend trial or watch a live stream. It is important to consider this in advance, as you may need to ask the Court to create an overflow room or attempt to enlist a streaming service like CVN. At the very least, have a ready supply of stadium seat cushions for those hard wooden court benches.

Settlement Team: While not necessarily unique to class-action cases, settlement discussions often occur while large class-action trials are in progress. Settling a class-action case, however, presents different considerations than a single-plaintiff settlement. And the discussions are often complex and time consuming. It is important to anticipate this and establish a separate settlement team to address settlement overtures during trial. Doing so will avoid distracting the trial team during critical moments, and ensure the parties have the ability to reach a settlement if one is available during trial.

Handling Media Requests: A final consideration is media coverage. Big class-action trials generate press coverage. That coverage is often most significant right before the trial starts or right after opening statements, when important evidence comes in, and/or right before or after closing arguments or a verdict. While it is tempting to have the trial team field media inquiries, those inquiries often come with quick deadlines and at times when the team is immersed in trial work. One way to handle this is to designate a specific media contact, someone who is not part of the in-court trial team but is following the trial and in constant contact with the team, to address media inquiries. Doing so ensures members of the media have a single contact and can receive a response by their respective deadlines.

Ultimately, it is difficult to say whether the recent rise of class action trials is a historical anomaly. Perhaps we have entered a new era of corporate risk-taking. Or maybe it's a smaller universe of defendants who are choosing to go to trial. That is something we’ll continue to track, and may be the subject of a future publication. But either way, it is important to be prepared should your next class-action case reach trial.

---

Nick Rosinia oversees Edelson’s Trial Practice Group, Megan Delurey is an associate in that group.

---