ClassActionBlawg author Paul Karlsgodt has a post based upon an insightful thesis: "Trial plans can be an effective pre-certification tool for both plaintiffs and defendants in class action lawsuits." (Karlsgodt, Practice Tip: Trial Plans Can Be an Effective Pre-Certification Tool (April 28, 2008) www.classactionblawg.com.) The interesting aspect of the post is that it is essentially neutral, discussing instances where either plaintiffs or defendants would benefit from the requirement of an early, detailed trial plan:
For defense counsel, asking the court to require the plaintiff to provide a trial plan illustrating the expected course of proceedings if the class is certified can help the defendant to persuade the court of practical manageability problems. . . . On the other hand, voluntarily providing a specific trial plan can be also be an effective tool for plaintiffs in seeking class certification. Provide a trial plan illustrating a reasonable and efficient process for resolving both common issues and any individualized issues can give even a skeptical court a level of comfort in certifying a class in the face of more abstract manageability arguments being raised by the defendant.
(Ibid.) The potential value of Karlsgodt's observation is that it might facilitate a process where the cream rises to the top and the junk sinks (with greater reliability that we seem to have now). In other words, if the class action has major structural flaws, the trial plan may illuminate them, but if the class action is indeed legitimate, then the trial plan may provide the confirmation of what the pleadings and sample evidence already strongly suggest. Perhaps a greater emphasis on the need for a thorough discussion of “superiority” of the class action device (required in California state class action) would promote movement in this direction without specifically imposing a pre-certification trial plan requirement, such as that required by Texas courts.
The complete post is worth a read.