The Process of an Asbestos Lawsuit
August 19, 2015
If you or someone close to you has been diagnosed with mesothelioma, you could be eligible for financial compensation in a mesothelioma lawsuit. Many aren’t aware of how the mesothelioma lawsuit process works, so we broke down and explained each step below.
Preparing to File
First, your attorney will ask you to provide certain information to get the claim started. This includes presenting proof of a mesothelioma diagnosis and providing information about asbestos exposure. A person cannot file a mesothelioma lawsuit unless the person already has proof of a mesothelioma diagnosis.
You can still file a claim if you are not sure who is responsible for your asbestos exposure. Your lawyer will investigate where you were exposed. If more than one company is at fault, they will usually be assigned a percentage of the damages individually. Your attorney will gather all of the information needed to file your claim for you.
After meeting the legal criteria for filing suit, each defendant will receive an official complaint with the chance to respond. The many years that likely passed since exposed, increases the possibility that the company responsible could be different or bankrupt. It may take some time to locate and provide the appropriate people with your complaint. Your attorney will oversee this process.
Once served with a copy of your complaint, each defendant will usually have 30 days to respond. Defendants rarely admit fault, and will most likely deny your claims to defend themselves. They may argue that your complaint isn’t valid, another party is responsible, or your condition isn’t related to asbestos exposure. Don’t worry, this is normal. Your attorney will reply to each defendant’s responses.
Once your mesothelioma lawsuit is filed, we enter the discovery phase. This is when lawyers on both sides gather relevant information about your allegations. Both sides will ask the other to answer written questions, produce documents and participate in depositions. Attorneys can direct written questions to each party about your specific case. Documentation may include your medical, employment, and military records.
Your attorney will prepare your responses to any written questions and document requests. Your lawyer will go over deposition questions with you in advance and be present to assist you during the deposition. In addition to helping you respond to discovery requests, your lawyer will also make similar demands to the defendant for information supporting your claim that the defendant negligently exposed you to asbestos.
The purpose of the discovery phase is to prepare for a jury trial, and to gather information for settlement discussions between the lawyers for the defendants and our office on your behalf. Some of the information gathered will become the evidence used at trial.
The discovery itself may take several months, but if you are very ill, your attorney can ask the court to speed the process along before your condition worsens.
Settlement or Trial?
Before a trial starts, a defendant may offer to resolve the case by offering you money. If you decline the settlement offer, it’s possible the defendant will make another offer during the trial. Your attorney will negotiate on your behalf.
You will be notified every time defendants make a settlement offer, and guided to either accept or reject these offers. The final decision to accept or reject an offer is up to you. In a case of multiple defendants, you are allowed to accept settlements from some companies and go to trial with others.
Financial compensation settlements with some asbestos companies are made very quickly depending on the outcome of past cases and very reasonable settlements are offered. Other settlement offers are made once the discovery phase is near completion.
Asbestos lawyers generally work on a contingency fee basis, where they only receive compensation if and when you do go to trial. In those cases, not only will you not pay out-of-pocket expenses during the litigation but, if you win or receive a settlement, the attorney receives a percentage of your compensation. The contingency fee is determined when you hire your attorney.
When the decision is made to go to trial, approximately three months after initial contact with your lawyer, you will be deposed by one of your attorneys and by the attorneys for the defendants. You will be videotaped offering testimony under oath, but out of court, either in or near your home. One of your attorneys will travel to your home prior to your deposition to help you prepare. The actual length of the deposition can vary, depending on the complexity of your case, but usually lasts between one to five days.
Many companies will settle during the beginning of a trial, with very few cases going all the way to obtaining a jury verdict. A jury trial usually lasts from three to six weeks. Sam Bernstein Law Firm has been successful in getting large jury verdicts for many of our clients whose asbestos lawsuits have gone to trial.
The trial process varies depending on where you file a claim. In many cases, it is not necessary for you to appear in court. If you win and the defendant does not appeal, you will usually start receiving payments a few months after the trial.
If you win the trial, the defendant may file an appeal within 30 and 180 days. An appeal will delay any monetary award, but the defendant will need to post bond for the amount awarded while the appeal proceeds. If the defendant loses its appeal, you will then start receiving payments. If the appeal is successful, the defendant may have to pay a smaller amount or nothing at all.
An appeals court generally accepts the facts of the case as the trial judge and jury interpreted them, including how credible the jury thought certain witnesses were. Usually, the only thing an appeals court decides is whether the trial court correctly applied the law in the case. If a mistake was made that affected the result of the trial, the appeals court may order a new trial. In other cases, the appeals court will correct the mistake without a new trial, such as when the amount of the award was calculated incorrectly.