Severance

SEVERANCE

The act of dividing, or the state of being divided.

The term severance has unique meanings in different branches of the law. Courts use the term in both civil and criminal litigation in two ways: first, when dividing a lawsuit into two or more parts, and second, when deciding to try multiple defendants' cases separately. In addition, severance also describes several actions relevant to property and employment law.

In civil suits severance refers to the division of a trial into two or more parts. Plaintiffs in civil suits base their cases on a cause of action—facts that give the plaintiff the right to sue. For reasons of judicial economy, the court may order the lawsuit divided into two or more independent causes of action. This type of severance occurs only when each distinct cause of action could be tried as if it were the only claim in controversy. As a result of severance, the court renders a separate, final, and enforceable judgment on each cause. A second type of severance occurs in cases involving multiple defendants. The court may sever one or more defendants from the trial and try their cases separately.

Severance works somewhat differently in federal criminal trials. When these cases involve the indictment of more than one defendant, usually only one trial is held. This process is called joinder. Rule 8 of the Federal Rules of Criminal Procedure permits the joinder of the indictments of two or more defendants if they are alleged to have participated in the same act or transaction. For policy reasons courts prefer using joinder to holding separate trials because it saves time and money. However, joinder can create potential prejudices against a defendant, resulting in greater likelihood of conviction, and thus a defense attorney will often ask the court to sever his client's case. Less often, the prosecution requests severance because it believes joinder will prejudice its case. Severance results in a defendant being tried separately on one or all of the pending charges.

Severance is not automatic. Federal rule 14 allows judges broad discretion in deciding whether to grant severance. To be successful, a defense motion for severance must show that concerns for the defendant's right to a fair trial outweigh the goals of joinder. Concerns for judicial economy and efficiency make trial courts reluctant to grant severance, and rarely do appellate courts overturn a lower court decision to refuse severance. One of the most successful grounds for seeking severance arises when a defendant wishes not to testify on all counts in a trial but chooses to claim her fifth amendment privilege on one or more counts.

In property and employment law severance is used in several different contexts. First, it applies to joint tenancy, a form of shared ownership of real property. Joint tenancy requires each tenant to share in the four unities of time, title, interest, and possession. When any of these unities no longer applies to any or all of the joint tenants, the joint tenancy is said to be severed, and the tenancy is terminated. Second, in regard to real property, severance is the cutting and removal of anything that is attached to the land, such as standing timber or crops. Third, severance is used when the government exercises its power to take private property for public use through the right of eminent domain. If only part of the property is taken and the value of the remaining property depreciates because of the government's proposed use of the taken share, the owner is entitled to compensation called severance damage. Fourth, severance pay is an amount of money paid to employees upon the termination of their employment. It is usually based on the employee's salary and duration of employment.

further readings

Hein, Kevin P. 1993. "Joinder and Severance." American Criminal Law Review 30 (spring).