This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits.

The defense team must consider whether the company’s best interests are better served by seeking an evidentiary hearing on class certification or a legal hearing that will rely on the discovery record and briefing and argument by counsel. A legal hearing may be more appropriate when the company has a very strong discovery record and the issues are fairly clear cut. A full evidentiary hearing, however, may be necessary to demonstrate facts that contradict the plaintiffs’ bald assertion that core issues of liability could be determined with common proof.

In particular, an evidentiary hearing—at which plaintiffs’ evidence is subjected to a “rigorous analysis”—can provide an excellent opportunity to educate the court on the complexities of the proof that will be offered on the claims and defenses. It also may expose weaknesses in plaintiffs’ experts’ opinions. Further, it can demonstrate to the court the gravity of class certification in a way that a legal argument might not, and it can provide the court with assurance that it is giving the parties their day in court on the very consequential issue of class certification before deciding the motion. An evidentiary hearing may have the additional salutary benefit of showing the court quite graphically that the named plaintiffs are mere pawns, not independent representatives of absent class members.

Court must take the merits into consideration in determining whether the requirements for certifying a class are satisfied.[1] How much of the merits to emphasize will be a strategy decision. In Ford’s experience, convincing the trial court to consider the merits at the class certification stage is half the battle. Those courts that think mistakenly that they are not permitted to consider the merits or are not inclined to do so are far more likely to grant a boilerplate class certification motion. In cases where the company’s position on the merits is strong, counsel should not hesitate to delve into the merits at the class certification stage.

If the company requests and obtains an evidentiary hearing, inside counsel should insist that outside counsel treat it like a full-blown trial, because that is what it should be and because the appellate court will defer to the trial court’s findings of fact on the basis of this hearing. The company may rely in part on written discovery or depositions, but counsel should prepare to present the case against certification with live witnesses, demonstratives, and other exhibits, as in a bench trial on the merits.

Inside counsel should be present at the hearing. The defense team may need to make critical decisions on the fly about which witnesses will testify at the hearing and what they will address. Inside counsel will play a vital role in working with company witnesses or other officers or employees actively supporting the trial effort. It is also an important opportunity for inside counsel to gauge the court’s reaction to the case, the company, and outside counsel. Having the right lawyers arguing motions and trying the case is one of inside counsel’s most fundamental responsibilities, and the class certification hearing will be one of the best opportunities to evaluate the lineup of lawyers working on the case.

Our next, and final, post will discuss the company’s response to class certification.