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Kazan, McClain, Lyons, Greenwood & Harley, PLC
171 Twelfth Street Third Floor
Oakland, CA 94607
Ph / 1-866-334-4506
Lawsuit Anatomy
Practice Areas | Anatomy of A Lawsuit | Occupational Safety
LAWSUIT ANATOMY
“What happens in an asbestos lawsuit?” is a difficult question to answer because each case is unique and handled on an individual basis. Nevertheless, there are some common features to asbestos litigation in California which w will describe here: the “typical” lawsuit on behalf of a victim of mesothelioma.
Potential clients who contact our office with usual talk with our intake department to gather as much information as we can about the individual, their family members, their work history, their asbestos exposure and their medical history. We also obtain medical and employment record releases.
After one of the firms investigators has interviewed the potential client a firm attorney will call or visit. Once sufficient information is gathered we can decide if we recommend filing a suit and if we feel the firm can best represent this person.
We accept cases with a chance of successful outcome, with an established diagnosis and defendants who are responsible.
We file our cases in California. If you do not have a viable case in California we may refer you to an appropriate attorney in another state. We make our recommendation based on finding the most appropriate jurisdiction for the case. This is a very important decision which we feel should be made at the beginning of the process.
When the firm takes a new client, both parties sign a retainer agreement and set out the details of our representation, the contingency fee structure and other important details. We also determine if the new client has a viable workers’ compensation claim. In many instance we handle both the civil lawsuit and the workers compensation application, although there are exceptions.
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, such as asbestos mining companies, manufacturers, distributors, brokers, insulation contractors, other contractors whose workers used asbestos products or were responsible for safety, and the owners of the sites where exposure occurred.
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. 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 Canada and other parts of the world.
"Discovery" is a legal term for the process of all the parties in a lawsuit discovering things relevant to the lawsuit. Instead of using flashlights and maps, attorneys discover things by asking written questions and asking for 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, and then the attorneys for the defendants have their chance. The deposition can take a few hours, or most of the 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.
Behind the scenes, our team of investigators gathers 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. It is not uncommon for them to review thousands of pages and talk to over a hundred potential witnesses.
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.
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. 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.
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
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.
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 we make to a new client is to sit down with an attorney who handles wills, estates and probate matters, and to review their entire estate plan or create a new one. Having a current, clear and accurate assignment of one's property 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 the client dies before we have resolved the case, we have to put the personal injury case on hold while we file a wrongful death case. Then we consolidate the cases, and pick up the process of discovery, trial preparation and settlement negotiation where we left off.
There is no rigid formula for a mesothelioma case. These are complex cases, but we have a great deal of experience bringing them, successfully, to settlement or verdict. We keep in close contact with our clients and potential clients, and are always available to answer questions and give an update on the case.