The decision to file a lawsuit in any situation is a difficult one. If you or a loved one is suffering from mesothelioma, chances are someone has said to you, “Just sue them!” But for most of us, it isn’t that easy. Litigation in an asbestos case doesn’t involve just one appointment with your lawyer and then – poof! – your compensation arrives.
An asbestos lawsuit will consume your time and your energies and may leave you and your loved ones emotionally drained. That’s the truth., though your attorney will do everything possible to make it easy for you and to produce an outcome in your favor and one that will benefit you and your family, it’s important to know before you begin that the process could be long and arduous.
Of course, an experienced mesothelioma attorney will guide you through the process, but it’s always helpful to know what to expect. In the paragraphs listed below, those considering litigation can read about the steps involved in a suit and their responsibilities during each of those steps.
This step is exactly what it appears to be, given its name. Before the suit is filed, the attorney meets with the potential client(s) in order to gather and compile information about his/their asbestos exposure. This not only helps the attorney to determine who is responsible for the exposure but also aids him in deciding which court to file the suit. In some cases, the suit might be filed in more than one court.
This gathering of facts can be a drawn out process but will move more smoothly and quickly if the plaintiff has his proverbial ducks in a row. It is helpful for the victim to know details about where and how he was exposed to toxic asbestos. A list of other individuals exposed at the same workplace, if available, is also helpful to attorneys filing an asbestos lawsuit.
The legal process actually begins when the lawsuit is filed. Filing involves a written complaint, drafted by the attorney in a specific fashion governed by court rules. The complaint is filed with the court(s) chosen during the preparation phase.
If your attorney is experienced in working with asbestos victims, he/she will know the specifics of designing a sound complaint that will set your case off on the right foot.
The filing step of the process doesn’t involve the plaintiff directly but your attorney will indeed inform you when your suit has been filed.
When a lawyer files a suit, each of the defendants named in the suit receives a copy of the complaint. This can be difficult where asbestos suits are concerned because, in most cases, the exposure occurred several decades ago.
Because of that, the company or companies responsible may no longer be in business, may have been purchased by another company, or may have already declared bankruptcy due to an onslaught of asbestos cases.
Hence, locating the right person(s) can be tough.
Once everyone is located and the complaints are delivered, the defendants have an opportunity to respond to the complaint, usually within 30 days. It is rare that the response will include an admission of guilt. Instead, the response will probably be a denial of responsibility and statements that proclaim that the plaintiff’s exposure was caused by someone other than them.
An experienced asbestos attorney is accustomed to receiving such responses and will answer them accordingly.
This is the part of a lawsuit that can take some time. During discovery, lawyers on both sides of the case will take time to “discover” information about the case. Depositions will be conducted by lawyers for both the plaintiff and defendant.
These take place in the attorney’s office and involve questions about events and facts related to the lawsuit. A court reporter will be present to record what is said during each deposition. In some cases, when a mesothelioma patient is too ill to attend a deposition outside of his home or hospital room, the deposition may be videotaped.
This is also the time during which attorneys gather evidence in hopes of proving – or disproving – asbestos exposure. Plaintiffs should be prepared to answer many personal questions and to give a full medical history.
Chances are that co-workers and loved ones may also be interviewed at this time so that the plaintiff’s lawyer can craft a solid case. The victim’s doctors may also be interviewed or deposed.
It’s important to understand that this portion of the litigation process can seemingly drag on for a while. If the plaintiff is very ill, his attorney may request that the process be hastened, especially if it is evident that the victim may not survive until the end of the lawsuit.
The plaintiff is never on their own through this process. His/her attorney will be involved during each step of the discovery process, a time during the lawsuit which can seem frightening for some.
Not every mesothelioma-related lawsuit will go to court. As a matter of fact, most will be settled out of court. That happens when the defendant offers a certain amount of money in lieu of going to court, which will likely cost the defendant more money and more time, especially if they lose in the end.
In most cases, the defendant certainly recognizes the fact that they did indeed manufacture or use toxic asbestos products and are liable for the plaintiff’s pain and suffering. As such, it usually is to their benefit to settle.
Remember, the defendant often has a lot of reasons to settle including burgeoning legal fees and convincing depositions from the plaintiff and others that prove responsibility on the part of his client.
They also may lack the time to complete discovery before the trial, so settling makes more sense than risking a negative outcome from the courts.
Each case is different, so the plaintiff and his lawyer will need to decide whether or not accepting a settlement is in the best interest of the plaintiff. Ultimately, however, the decision belongs to the plaintiff. It is likely that the defendant’s attorney will first offer a low number in regards to settlement. The attorney for the plaintiff can determine whether or not this is a reasonable offer or if they should try to negotiate for a higher award.
So, how is the settlement amount determined? Many factors are taken into consideration including:
Medical expenses – Mesothelioma victims often have overwhelming medical bills, some of which – inevitably – will not be covered by even the best of insurance. Cancer is an expensive disease!
Loss of wages – If the victim was still working and earning a living when he became ill, chances are he/she will have had to quit. Furthermore, if a spouse has become the caregiver, that individual may have had to quit their job as well.
Proof of negligence – If attorneys are able to prove that the defendant(s) definitively knew that their use of asbestos was making people sick, the defendants may offer more because they realize a court settlement could be very large.
The state in which the claim is filed – Different states put forth different parameters in regards to proving negligence and wrongdoing, so the state in which you’ve filed may have an impact on that final number.
Number of defendants – Of course, the more defendants named in your case, the higher your settlement might be. In a settlement, ALL defendants will be required to contribute their share, though some defendants may be deemed more liable than others.
Other factors – These include the age of the patient, the stage and severity of the cancer, the level of exposure, and past health records, including whether or not the plaintiff is/was a smoker.
If the plaintiff does not settle out of court or if a settlement is not offered by the defendant(s), the case will proceed to trial. Trials can take just a day or two or may drag on for much longer, depending on the circumstances of the case. Each one is different, of course.
In many instances, the plaintiff does not need to appear in court, especially if they are very ill. The attorney will keep his client abreast as to the proceedings and will obtain the services of others who can help win the case, including expert witnesses, co-workers, family members, and so forth.
If the plaintiff wins and is awarded compensation, they will start receiving payments within a few months, in most cases. However, the defendant(s) have the right to appeal the verdict.
Generally, those wishing to appeal the verdict have somewhere between one and six months to do so. They can do this if they disagree with the award or the way in which it was determined.
During the appeal process, the plaintiff will not receive any money but the defendant will have to guarantee that the compensation will be available should the appeal be denied by posting “bond” in the amount awarded.
The lawyer for the plaintiff will keep his/her client abreast of the goings on during the appeal and can explain any concerns as they arise.
More questions? Call Lee, (855) 397-6640