7...The "Anatomy" of an Asbestos Lawsuit

The "Anatomy" of an Asbestos Lawsuit Clients and potential clients are often curious about "what happens" in an asbestos lawsuit.

This is a difficult question to answer because every case we handle is unique, and one of the things that makes The Firm distinctive is that we handle every case on an individual basis. Nevertheless, asbestos litigation in California has some common features, and this article attempts to describe the A to Z of a "typical" lawsuit on behalf of someone with mesothelioma cancer.

Getting started

When a potential client with mesothelioma approaches our office, the initial contact is often with our intake department. This starts an information-gathering process. We ask potential clients to provide us with essential information about themselves, their family members, their work history, their exposure to asbestos, and their medical history. We also obtain releases so that we can order employment and medical records.

Usually one of our investigators interviews the potential client, and one of the attorneys will call or visit.

As soon as we have sufficient information, we decide if we can recommend filing suit and if our firm can represent this person.

We accept a case if we think there is a reasonable chance of a successful outcome. We need to be confident that we can establish the diagnosis, and that there are defendants who are responsible.

We file our cases in California, but not every person has a viable case in California. If we conclude, after reviewing all the facts, that a case should be filed in another state, we call upon the most appropriate attorney in our long-established network of attorneys in different states with whom we have worked before. We make a recommendation to the potential client that we associate with an attorney who practices in the most appropriate jurisdiction for the case. It is very important to file an asbestos case in the right jurisdiction and we believe that this decision should be made at the beginning of the process rather than mid-stream. (Click here for more information on this topic.)

When we take on a new client, both parties sign a retainer agreement. This is a contract between client and The Firm, and sets out the details of our representation, the contingency fee structure, and so on. An attorney from the office meets with the client to go over these matters in detail. (Click here for more information on this topic.)

At this time we also determine if the new client has a viable workers' compensation claim against his (or her) employer(s). In many instances we handle both the civil lawsuit and the workers' compensation application, but there are exceptions. Workers' compensation claims for complex asbestos matters usually take about six to twelve months to resolve. (Click here for more information on this topic.)

Filing the complaint

The formal start of the case comes when we file the complaint against all companies that we believe are or might be responsible for the asbestos exposure. These might include asbestos mining companies, manufacturers, distributors, brokers, insulation contractors, other contractors whose workers used asbestos products (e.g. sheet-metal, joinery, fireproofing) or were responsible for safety (e.g. the prime or general contractor), and the owners of the sites where exposure occurred.

It is obvious that determining which companies to sue is a complex matter. We usually file suit against more than a dozen defendants, and sometimes as many as forty. Because we have been handling asbestos cases for 30 years, we have extensive resources to enable our attorneys to make well-informed decisions about who to sue, and how to go about it. We have a team of seven investigators, an extensive document archive, and a database of records and depositions. We also have cooperative working relationships with many other plaintiffs' law offices around the country and in Britain, Australia, Canada and other parts of the world.

Our client is known as the plaintiff in the lawsuit - because he (or she) is making the complaint. The companies that the plaintiff sues are called defendants - because they are defending. The defendants have about a month, after receiving the complaint, to respond.

Discovery

"Discovery" is a legal term, but it really means nothing more than the process for all the parties in a lawsuit to discover things relevant to the lawsuit. Instead of using flashlights and maps, attorneys discover things by asking written questions (called interrogatories) and asking for documents (subpoenas and requests for production of documents.) The defendants find out things about the plaintiff, such as employment, marriage and medical history. On behalf of the plaintiff, The Firm finds out relevant information about who was responsible for the asbestos exposure at different places and at different times. Using this information, each side puts together its case.

One form of discovery that directly impacts every client is the deposition. This is a legal proceeding that takes place in or near the plaintiff's home or at our offices. The plaintiff, under oath and on videotape, answers questions posed by the attorneys. We start and ask the first round of questions, then the attorneys for the defendants have their chance. The deposition is sometimes over in a couple of hours, but on other occasions the defendants stretch it out for more than a day. An experienced Firm attorney will meet with the client before the deposition - to explain what will happen, prepare the client, and address the client's concerns - and will protect the client throughout the deposition.

We do our best not to disrupt our clients' lives, so we try to limit the time we take for the deposition, document review, and other preparation.

Behind the scenes, our team of investigators gather information from many sources, to identify the asbestos products that the client was exposed to, and to identify the companies responsible for the products and for "safety" at the site. They are likely to contact co-workers, review depositions, visit libraries and archives, query our in-house databases, search our records collections, contact other law offices that might have information on the topic, access government document collections, and examine company records. They leave no stone unturned as they expand upon the information gathered at the first interview. It is not uncommon for them to review thousands of pages and talk to over a hundred potential witnesses.

If our client is in poor health, this stage of the case is usually compressed into a couple of months. However, if there is no medical urgency, the to and fro of the discovery process between plaintiffs and defendants can extend over many months.

Bankrupt defendants

Over the years, a number of asbestos companies have filed for bankruptcy; many have set up settlement trusts that are separate from the litigation process. While moving the case towards trial, we also submit claim forms and negotiate with these settlement trusts. The money received from these trusts is generally much less than would have been received had they been in the litigation, and the terms of payment are often delayed over many years, but The Firm and the plaintiff have no control over this and we do the best we can in the circumstances.

Preparing for trial and reaching settlements

As soon as possible, we ask the court to put the case on the trial calendar. When a client is in poor health, we shorten the discovery process and ask the judge to expedite the case by moving it rapidly to the top of the trial calendar. A long period of discovery is a luxury that many clients cannot afford and we have been very successful at moving cases rapidly through the legal system. In a recent case in which we obtained a verdict of almost $6.5 million from a jury, we were able to resolve the entire case against eighteen defendants, including the five week trial, in less than seven months after we were hired. (Click here for more information about this case.)

Putting the case on the court's trial calendar also marks the beginning of serious settlement negotiations. We consult with the client and enter into negotiations with the defendants. We present each defendant with a demand that is reasonably based on that company's share of liability in the lawsuit. We have settlement programs with several major defendants that give our cases favorable treatment.

Many defendants choose to settle once presented with the evidence against them, but we often start trial against one or more defendants. It frequently happens that during the course of jury selection the remaining defendants agree to settle; others settle during trial. It is unusual for a case to go all the way to a verdict.

Asbestos trials usually last about a month with evidence being given by treating doctors, oncologists, pulmonologists, pathologists, industrial hygienists, co-workers, the client and family, and others.