Numerosity

The first requirement of the class action rule says a class is permissible only when the joinder of all members is impracticable; Court Room Photo commonly referred to in case law as numerosity. There is no magic number of persons similarly situated to meet the numerosity requirement. It is axiomatic that if only a few people desire to litigate a common grievance there is no need for one of that number to act as representative for the group. The commonly held perception that an action brought pursuant to the class action rule is that there be many persons seeking redress. That perception is both intuitive and correct.

Numerosity is the first and fundamental eligibility barrier for counsel to cross. Competent counsel will not institute a proposed class action unless he knows numerosity is satisfied. Likewise, competent defense counsel usually will avoid impairing their credibility with the court by challenging numerosity. While they usually don’t concede that the numerosity criteria is satisfied, they generally merely refrain from contesting it. A general observation is that judges reject the concept that plaintiffs’ counsel are incompetent and would bring a proposed call case knowing that the numerosity requirement is not satisfied. Thus, trial courts often admonish defense counsel of the axiom that: ''When the argument is made that everything is wrong, it is likely that nothing is.'' Challenging numerosity when a proposed class obviously meets the criterion only serves to impair counsel’s credibility with the court.

Impracticable is not the same as impossible. Even though joinder can actually be accomplished, the standard of impracticability relates to convenience, conservation of judicial, attorney and litigant resources. Even a relatively small group may constitute a cognizable class if the application of common sense supports the action being litigated once in a single forum rather than several times in different courts.

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