Friday, January 19, 2007

What happens during an Asbestos Lawsuit

Your sick and or angry. Perhaps you have a family member that is sick or who had died. I understand what you are going through. You have thought about filing a lawsuit but don't know what to expect. Here is a good overview of what will happen. Your exact circumstances will be slightly different but the below information will provide you with a simple overview of the legal process of an Asbestos Lawsuit.

Getting Started
Every person’s case is unique and should be based on an individual basis. Additionally every state has its own guidelines. It is also important to note that no lawyer can practice in every state. When choosing a law firm keep this in mind. Approaching a large law firm may help you if you need to file in a different state as they may have employees in that state. If they don’t, they will often have contacts through their existing network of qualified lawyers in that state.

Also keep in mind that the field of law is specialized. You would not want to hire a plumber to take care of an electrical problem in your home. Likewise, make sure the lawyer you retain is qualified to handle the lawsuit you want to pursue.

When you first meet with your law firm, your initial contact starts with the information gathering process. You need to provide your lawyer essential information about yourself, family members, your work history and your exposure to asbestos. This is also the time to reveal you medical history. Your lawyer may have you sign a release so that they can get additional information on your employment and on your medical records.

After this first meeting, you will hear from the lawyer if they recommend filing a lawsuit and if the lawyer is willing to represent you. Lawyers are in the business of making money and will not usually accept a case if they believe there is not a reasonable chance of a successful outcome. This is a harsh reality - but a true one.

Now once a law firm takes you as a client, you need to sign a retainer agreement. This is a contract between client and the law firm, and presents in detail all of what the law firm will represent, the contingency fee structure, and so on. If you go to a large law firm, an attorney from that office will meet with the you and go over these matters in detail.

You may be advised by your lawyer that you have a viable workers' compensation claim against your employer(s). There are some circumstances where the lawyer we handle both the civil lawsuit and the workers' compensation application, but there are exceptions. Also be aware that a Workers' compensation claims for complex asbestos matters can take six to twelve months to resolve.

Filing the complaint
The formal start of a case comes when your lawyer files the complaint against all companies that you and your lawyer 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.

Determining which companies to sue is a complex matter. As a general rule, the lawyer will usually file suit against more than a dozen defendants (and can go as high as 50).

You in legal terms is known as the plaintiff in the lawsuit - because you are making the complaint. The companies that you sue are called defendants - because they are defending. The defendants have about a month, after receiving the complaint, to respond.

"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. Your law firm discovers things by asking written questions (called interrogatories) and asking for documents (subpoenas and requests for production of documents.) The defendants find out things about you such as employment and medical history. On behalf of you your law firm finds out relevant information about who was responsible for your asbestos exposure at different places and at different times. Using this information, each side puts together its case.

Here is where it starts to get scary. Don’t worry; your lawyer is there to help you. Your lawyer will meet with you prior to the deposition - to explain what will happen, prepare you for the deposition and address your concerns. Your lawyer will be with you at the deposition protecting you.

Part of the discovery process is the deposition. This is a legal proceeding that takes place in or near your home or my be handled at your law firms office. You under oath and on videotape, answers questions posed by attorneys. Your lawyer starts the first round of questions, then the attorneys for the defendants have their chance. A normal deposition lasts a couple of hours but can stretch out for more then a day.

Behinds the scene investigation
It is often necessary for your lawfirm to hire investigators to gather information from many sources, to identify the asbestos products that you were exposed to, and to identify the companies responsible for the products and for "safety" at the work site. These investigators will likely contact co-workers, review depositions, visit libraries and archives, query the lawfirms databases, search records collections, contact other law offices that might have information on the topic, access government document collections, and examine company records. This investigation process is critical and they should 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 you are 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, your lawyer will 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 your lawyer has no control over this and will do the best they can in these types of circumstances.

Preparing for trial and reaching settlements
Your lawyer does not want to drag this out over a long period of time and as soon as possible, will ask the court to put the case on the trial calendar. If you are in poor health, your lawyer will 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.
Putting the case on the court's trial calendar also marks the beginning of serious settlement negotiations. Your lawyer will consult with you and enter into negotiations with the defendants. Your lawyer will present each defendant with a demand that is reasonably based on that company's share of liability in the lawsuit.

Many defendants choose to settle once presented with the evidence against them, but your law firm we often start a trial against one or more of the 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.

When a case goes through to verdict, the losing party or parties usually appeal. This means that the final outcome of the trial can be delayed for many months or even years.
When each defendant settles, the plaintiff and family members have to sign a release. This document releases that defendant from further responsibility in the matter. This means that you cannot sue them again for the same thing.

There is also the question of how to distribute the money. It has to be divided, or apportioned, between the injured person and his/her dependents. One of the first requests your lawyer will make to you is that you schedule a meeting with an attorney who specifically handles wills, estates and probate matters, and to review their entire estate plan or create a new one. Remember, areas of law are unique. You don’t want that plumber doing electrical work…Having a current, clear and accurate assignment of one's property - including the potential value of the pending asbestos lawsuit - goes a long way towards making the settlement and money distribution process a smooth one. Once all the parties have signed the release document, payment is usually made within three months.

Unfortunately, if you were to die before the resolution of the case, your lawyer would have to put the personal injury case on hold and file a wrongful death case. The cases will be consolidated and the discovery process will pick up the process of discovery, trial preparation and settlement negotiation where we left off.

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