The Law Offices of David Shaw
The lawsuit is the means provided by our legal system for a person who believes that he or she has been injured by the misconduct of another person (or corporation) can seek compensation for those injuries from the person or corporation that committed the misconduct. The person seeking compensation is called the plaintiff — the person or company that compensation is being sought from is called the defendant. If the plaintiff has been wronged by the misconduct of more than one person or company, then the plaintiff must sue more than one defendant. Asbestos cases will sometimes have as many as forty or more defendants, because the plaintiff may have been exposed, over the course of his or her career, to asbestos from products made by many different manufacturers. The lawsuit begins when the plaintiff files a document called a complaint in court. The complaint will identify all the defendants and contain statements (called “allegations,” because they have not yet been proven to be true in a court of law) of what the defendants did wrong, and how that wrongful conduct has harmed the plaintiff. Copies of the complaint are served, or delivered, to each defendant, to put them on notice that they are being sued. Each defendant then has a certain amount of time (usually thirty days) to file a document known as an answer. The answer will contain statements that either admit or deny (the important allegations are always denied) the allegations contained in the complaint. The answer will also contain any affirmative defenses that the defendant wishes to assert, and these will be in the form of allegations. For example, the defendants in an asbestos case may allege (make an allegation) that the plaintiff did not file his or her lawsuit before the deadline (called the statute of limitations) established by law. The plaintiff then files another document called a reply. The reply will admit or deny allegations contained in the defendant’s affirmative defenses. The complaint, answer and reply are called pleadings.
The burden of proof in a civil lawsuit is a “fair preponderance of the evidence,” which essentially means that the party (the plaintiff and defendants are called “parties”) with the burden of proving the truth of an allegation must prove it more likely than not that the facts contained in the allegation are true. Each party has the burden of proof on its own allegations. So the plaintiff has the burden of proving the facts alleged in the complaint and denied in the answer, and the defendant has the burden of proving the facts alleged in the affirmative defenses and denied in the reply.
Once the lawsuit is begun, by filing the complaint, the plaintiff and defendant can engage in discovery, where each side learns facts available to the other side. Because much (but not all) of the discovery against the asbestos companies was done years ago in other cases, the discovery process generally involves the plaintiff and the plaintiff’s lawyer providing information to the defendants. This information is provided in three forms. First, the plaintiff must answer a standardized set of written questions (called interrogatories) that must be answered in writing, under oath, with the assistance of the plaintiff’s attorney. Second, the plaintiff must sign written authorization for the defendant to obtain the plaintiff’s medical records directly from the hospitals or doctors that have given the plaintiff medical treatment. Often, there are also authorizations to obtain Social Security records of where the plaintiff has worked, and the plaintiff’s military records, if any. The third, and often most critical item of discovery is called the deposition. In his home or in a lawyer’s office, the attorneys for the asbestos companies are permitted to directly ask the plaintiff questions. The plaintiff, who will always have his or her lawyer present, must answer the questions (unless they are improper, in which case the plaintiff lawyer will object and instruct the plaintiff not to answer) under oath. There will be a stenographer present, who will make a typewritten transcript of all the questions, answers, objections and so forth. Sometimes, the plaintiff’s own attorney will be asking the questions, in order to preserve the plaintiff’s testimony. Often, these types of depositions are recorded on videotape, to be played at trial.
Once the discovery process and pleading process are completed, the case is ready for trial, and a trial will be scheduled by the court. Generally cases are tried in the order that they are filed, but many court systems have an expedited trial calendar for living persons with malignancies. The scheduling of a trial will depend on the backlog of other cases. In some jurisdictions, trials of living malignancy cases are scheduled within months of the complaint being filed. In other kinds of cases, or in other jurisdictions, it can take years.
Two Types of Mesothelioma Lawsuits
Mesothelioma lawsuits are divided into two categories — one, where the person suffering from mesothelioma is living and is bringing the lawsuit as a plaintiff in his or her own individual capacity; the second, where the person with mesothelioma has died, and the plaintiff is a spouse, relative and/or representative of the deceased person’s estate. The former is called a personal injury lawsuit (a “living case”), the latter is called wrongful death lawsuit (or “death case”), and the laws and procedures that apply to them can be quite different, depending on what jurisdiction the case is filed in.
In the case of the living plaintiff, the most important factor is time. The attorney will come to the plaintiff’s home and gather the information necessary to file the lawsuit and answer the interrogatories. This will probably take several sessions. Then, in most cases, there will be one or two depositions of the plaintiff, depending on what the local procedures are. Once the deposition(s) are done, the plaintiff’s attorney does the rest, until it is time to go to trial.
In the case where the person who would normally be the plaintiff is deceased, a court-appointed individual (usually the spouse or a close relative) stands in as the plaintiff, and the injuries claimed include the loss of life itself. The most important part of a death case is finding persons who remember working with the plaintiff, to provide the work history and product exposure testimony that the deceased individual (called the “decedent”) would have provided were he or she still living. The interrogatory answers are done and signed by the actual plaintiff, and that person may or may not have to give a deposition. Sometimes the co-workers must give depositions as well. As in the living case, at that point the lawyer takes over and prepares the case for trial.
This is the end stage. Most cases settle before there is any actual trial testimony in court, but often a jury has to be picked and be ready to hear the case before there is a settlement (the composition of the jury can effect the settlement value of the case). Generally, where there are multiple defendants, different defendants will settle at different stages, and some will hold out to the end. Often, where there is trial, it will only be against one or two defendants.
Trial preparation is the most intense pressure cooker that a litigation attorney can be involved in, other than perhaps the trial itself. Often, the plaintiff, shunted off to a hotel room or waiting room at the courthouse, can feel lost or ignored. This is unfortunate but inevitable. The hours leading up to trial are when the case is most likely to settle, so the attorneys are simultaneously negotiating and preparing to go to war, which can result in some stress.
If the case goes to trial and the jury renders a verdict, that is not the end of the line. Either side can file an appeal, claiming that the jury found against them because of a mistake made by the judge at the trial. Cases often settle while they are on appeal as well.
Payment of Compensation
In asbestos litigation, settlement payments often take place months after the settlement is agreed to. This is because the defendants or insurance companies that are writing the checks are also writing checks on thousands or tens of thousands of other cases. Also, settlements may need to be approved by underwriters at places like Lloyd’s of London, where much of the world’s commercial reinsurance is written (for more on this, see Asbestos Litigation History). Some payments come in several months after the settlement is reached, some payments will be more than a year later. Unfortunately, because of defendants filing for bankruptcy, some won’t come in at all (at least until a bankruptcy trust starts paying out, which is sometimes years later). Some settlements can be in more than one payment.
Out of the gross amount of each settlement, the plaintiff’s attorneys will deduct the attorneys’ fee, which is usually between thirty-three and forty per cent of the total. Out-of-pocket lawsuit expenses will also be deducted at this time. The remainder, sometimes described as the amount to which the plaintiff is entitled, goes to the plaintiff. Because the asbestos bankruptcies are so backlogged (especially with all the new ones, which have not even had claim procedures set up yet), the case will generally remain open for a number of years after the settlement of the case that was pending in court.
Amounts of settlements vary widely, not only from case to case but from region to region and state to state. Even different counties within the same state can have substantial differences in settlement values.
© 2008 The Law Offices of David Shaw 94 Prospect Street New Haven, CT 06511 1.888.573.6331