Firmness of Trial Date

Experiences in at least two of the district courts represented at the asbestos conference suggest that some flexibility in the firmness of the trial date is acceptable. In one court, the judge assigned to asbestos cases set a “term” in which forty to fifty asbestos cases were scheduled for trial. The court established its roster of cases six weeks prior to the beginning of the term, and the plan was to try all the cases in sequence. The judge’s practice is to meet with all of the attorneys and deal with problems; he rarely grants continuances.

In the asbestos cases, the judge announced plans to consolidate fourteen cases, clustered by plaintiffs’ place of employment. About one-third of the cases settled before the start of the term. The remainder settled after jury selection had commenced.92

During the pretrial process, the court ruled on some motions; however, the court did not exert strong pressure on the parties to settle. The judge’s plan was that he would serve as a mediator after the parties had bargained to impasse, suggesting a formula for settlement only after the parties had exhausted their own efforts.

In a variant of this process, the same court set three special terms of court of 20 asbestos cases each in three successive months. If the first 20 cases settled, the following month’s cases would not be expedited. If some cases were not concluded during the first month, they would be added to the following month. All of these cases settled. The court has terminated two-thirds of its asbestos case docket and is probably, the most current court in the nation, having terminated at least 273 out of 454 cases. About 5 of those cases were tried to conclusion, and there were no jury verdicts for the plaintiff.

In another court, approximately seven hundred cases were set for trial at a fixed time; the plan was that four judges would hear the asbestos cases until completion while other judges handled the criminal docket. One of the judges played an active role in settlement negotiations; he reviewed a significant sample of the cases, evaluated the medical evidence, and assigned a dollar figure to each case. He then aggregated these figures, averaged them, and multiplied the average by the number of plaintiffs to determine a range of values for the total case. With the permission of counsel, the judge met privately with the lawyers to determine their posi­tions. After the judge’s active involvement in the negotiations, all the cases were settled at a Figure within the court’s estimated range of values.93

In both of these courts, the firmness of the trial date was less than absolute. In the first, only the cases at the top of the list for the term could truly be said to have had fixed dates. The other cases were to be tried on a “trailing docket” by a single judge. In the second court, only a smattering of the seven hundred cases could have had a fixed trial date. The parties could have held out for full trials in the later cases and thus put off those trials for a long period of time. The intention to try some test cases, however, raises the risk of all-or-nothing success or failure for both parties. This raising of the stakes may be the driving force behind settlement of similar cases when the first of a set is called for trial. The experience of these two courts is that setting a reasonably firm trial date for the first of a series of cases facilitates settlement of the entire series. A small expenditure of judicial resources ap­peared to result in a major reduction in the asbestos caseload of those courts.94

  1. The court used a system of selection of multiple panels of jurors at the outset
    of the term. The judge’s practice is to complete voir dire during the first day or two
    of the term; juries are then available to hear cases in sequence. Use of this procedure probably enhances the credibility of the court’s intent to try cases as sched­uled.
  2. Repetition of this plan was thwarted, however, when the circuit court granted
    a stay of the trial date. By the time the stay was lifted, the caseload of the court
    had mushroomed, and the assistance of the three judges was no longer available to the single judge to whom the asbestos cases had been assigned.
  3. This initial observation assumes that other factors, such as the skill of the attorneys and the flexibility of the clients, are favorable. Where attorneys’ evaluations of the cases are widely divergent or where the client’s expectations are unrealistic, those factors may predominate.