Filing a lawsuit can be confusing, and this is especially true in asbestos-related cases because such lawsuits usually involve more than one defendant and often involve filings outside of court, such as claims to bankruptcy trusts.

This chapter walks you through the basic steps of filing a mesothelioma lawsuit, from initial consultation to court verdict or out-of-court settlement. Laws and regulations on the process vary from state to state, so be sure to ask your attorney to explain the requirements that pertain to your case.

Stages of a Lawsuit

Although every case has unique circumstances and facts, the process of consulting with an attorney and filing a lawsuit follows the same basic pattern: initial contact, preparation, filing the lawsuit, answer phase, deposition, and then settlement or trial. If a case goes to trial, there may also be an appeals process.

Because of the aggressive nature of mesothelioma and lung cancer, most state allow for expedited schedules for mesothelioma cases. Your attorney should do everything he or she can to fast-track your case and resolve your claims within six to 12 months. Cases are usually filed within 30 days of the initial consultation, and depositions typically are completed within 30 to 60 days of filing. The attorney handling your case will attempt to make your case move even faster if your health warrants quicker action.
The following sections explain these stages in more detail.

Initial Contact

Your first contact with an attorney usually involves a brief telephone conversation to get some basic facts about your case and determine whether you should pursue a legal claim. If the attorney believes you have a valid case, the next step is scheduling a face-to-face meeting to discuss your case, your legal options, and the process of filing and prosecuting a lawsuit.

This in-person meeting should be with a lawyer – not a paralegal or investigator. The lawyer should offer to come to your home for the in-person meeting so that you don’t have to travel if you don’t want to.

If you choose to have Belluck & Fox represent you, the firm will schedule your in-person meeting within 24 hours whenever possible. We will have our attorney visit you in your home. During this meeting, the attorney will go over your work, life, and medical history and ask you to sign release forms (also called “authorizations”) that allow the firm to get copies of your medical and employment records.
You’ll also sign a retainer agreement that spells out when and how – and how much – the lawyer will be paid if your lawsuit is successful. You should hire a lawyer who works on a contingency basis, meaning they don’t get paid unless they win an award for you, either in a trial or an out-of-court settlement. If you do win an award, the law firm’s fee will be deducted from your award.

Preparation

After the initial meeting, your attorney will research your case to determine who should be named as defendants (see Chapter 6 for information on who typically gets sued in asbestos-related cases) and in which court your claim should be filed. Because laws in every state are different, one of the most important decisions is where to file your claim; typically, your claim will be filed in the state where you live or where you were exposed to asbestos. Your attorney will explain these options to you. An experienced mesothelioma attorney will already have records from most asbestos companies and information on major job sites and Navy ships. They’ll use this information to help research your case.

Filing the Complaint

When the research is completed, your attorney will file your complaint in the appropriate court. The companies named as defendants will be served with copies of the complaint. The complaint typically will assert that the defendants are responsible for manufacturing, selling, and/or installing defective products and equipment, that they caused your asbestos exposure, and that they failed to warn you of the dangers of that exposure.

Answer Phase

Defendants usually have 30 days to respond to lawsuits filed against them. In asbestos-related cases, defendants will send your lawyer a response to the allegations in the lawsuit. After the court receives the defendants’ responses, the court will hold a hearing and scheduling conference for the case, allotting a certain amount of time – usually between six and 12 months – for both sides to prepare their case (see the following section) and schedule a trial date.

Discovery Phase

The discovery phase of your case gives both your attorney and the defendants time to interview witnesses, obtain needed documents, and conduct other research pertaining to your lawsuit. Both your attorney and the defendants will hire medical and other experts to review your case; these experts may be called to testify if your case goes to trial.

Deposition

As the plaintiff, you’ll be required to give a deposition, or sworn testimony given outside of a courtroom. Depositions can take place at your attorney’s office, a court reporter’s office, or at a convenient location for all parties, such as a hotel conference room. If necessary, your attorney may arrange for your deposition to take place at your home. Your attorney should choose a place that’s convenient to do.

Prior to your deposition, your attorney will meet with you to go over the questions that will be asked and prepare you for the deposition. The people present at your deposition will include you, your attorney, the court reporter (who takes a transcript of everything said during the deposition), and attorneys representing the defendants. Your deposition also may be recorded via audio or video.

Your attorney will ensure that the questions you’re asked are fair and reasonable and relate to your lawsuit. On occasion, he or she may object to a question and instruct you not to answer. Depending on the complexity of your case and the number of defendants, your deposition may take a couple of hours or may last longer.

The defendants’ attorneys will be looking to find out how you were exposed to asbestos. You should be prepared for them to ask questions about your medical and work history.

After your deposition, your attorney and the defendants’ attorneys will receive copies of the transcript. Evidence you give in your deposition may be used in court if your case goes to trial. Your attorney also may do a second videotaped deposition for use at trial, in which your attorney asks questions as if you were in the courtroom. This videotape will be played during your trial if you’re unable to participate.

Except for your deposition, your attorney will perform most, if not all, of the work required during the discovery phase.

The release forms you sign at your first meeting permit your attorney to get copies of your medical and work records, so you won’t even have to collect those documents.

Trial / Settlement Phase

When your claim is first filed, both your attorney and the court will assume that there will be a trial in your case. However, most mesothelioma and other asbestos-related cases are settled out of court before a trial begins. There are several reasons why your case may settle:

• The defendant(s) may see that the evidence in your favor is overwhelming, making it unlikely that they would succeed at trial.
• The defendant(s) may wish to avoid the time and expense of a trial.

Settlement offers can come at any time after your claim is filed, even up to – or during – a trial. Your attorney will evaluate any settlement offers and discuss them with you.

You don’t have to accept any offer if you feel it’s unfair. An experienced mesothelioma attorney can advise you on whether a given offer is reasonable for your circumstances, but the decision on whether to accept a settlement or proceed to trial is ultimately yours to make.

Many people prefer to settle over going to trial, because trial outcomes are unpredictable. In addition, if you receive a large award from a jury, one or more of the defendants in your case is likely to appeal the award, which obviously lengthens the process (see the following section). Settlement offers often include provisions that require you to keep the terms of the settlement private and usually state that the defendant does not admit to any wrongdoing. For some people, the lack of accountability in a settlement offer is a deal-breaker; they want the companies responsible for their asbestos exposure and illness to be held publicly accountable for their actions, so they prefer to go to trial. Only you can decide whether a settlement offer is acceptable to you.

If you agree to a settlement, the defendant(s) will send your attorney a check for the full settlement amount. Your attorney will then send you a check for your portion; you also should receive a statement of deducted expenses with your check. You shouldn’t have to wait until the end of your case to receive settlement money.

If your case involves multiple defendants, you may receive a settlement offer from some defendants but not from others. If that happens and you accept the settlement offers, those defendants will be dismissed from your complaint and you will continue to trial with the remaining defendants.

If your case goes to trial, your attorney will present testimony and evidence in support of your claim, including the testimony of expert witnesses. You may have to be present in court and testify at trial.

The length of a trial depends largely on the complexity of your case. Some trials take only a week, plus the time for the jury to deliberate; others may last several weeks or longer. Your attorney can give you an idea of how long a trial might last in your case.

If you win at trial, the jury will award you a sum of money. This award may be reduced by your previous settlements and other benefits you received, such as worker’s compensation.

Appeals

Defendants who lose at trial usually have between 30 and 180 days (six months) to file an appeal. An appeal delays any payment to you, but the defendant usually must post a bond, or security for the amount awarded at trial, until the appeal is resolved.

Appeals most often adjust the amount of the award given at trial; in some cases, an appeals court may order a new trial.

If the defendant loses the appeal, the trial award stands. If the defendant wins the appeal, you’ll receive the new award determined by the appeals court (or no payments at all if the appeals court reduces the award to zero or orders a new trial).
If your attorney works on a contingency basis and you lose on appeal, you do not have to pay your attorney out of your own pocket. Your attorney only gets paid from money you’re awarded in a trial (and possible appeal) or a settlement.

Other Claims

Your attorney will file the other claims mentioned in Chapter 6 at some point during this process. Ask your attorney about the timing of these other claims, such as worker’s compensation and bankruptcy trust claims.