§ 41.009.Bifurcated Trial

A procedural right, and it belongs to the defendant alone.

On motion by a defendant, the court shall provide for a bifurcated trial. The motion must be made before voir dire examination of the jury, or at a time specified by a pretrial order under Rule 166. In an action with more than one defendant, the court shall bifurcate on motion of any defendant — one is enough to bind the case.

The split is precise. In the first phase, the trier of fact determines liability for compensatory and exemplary damages and the amount of compensatory damages. In the second phase, if liability for exemplary damages was established, it determines the amount of the exemplary award.

Note where the line falls. Liability for exemplary damages — whether there was fraud, malice, or gross negligence — is decided in the first phase along with everything else. Only the amount moves to the second.

The reason is in the evidence rules. Net worth evidence, and other proof relevant only to the amount of exemplary damages, is inadmissible in the first phase. Bifurcation is what allows a jury to decide liability and compensatory damages without hearing how wealthy the defendant is.

The word shall makes it mandatory. A timely motion is granted; the court has no discretion to refuse.