Timing of Trial Date or Settlement Efforts

All of the conference participants agreed on the importance of giving counsel sufficient time and information to evaluate a case before pressing forward with settlement efforts. There was disagreement, however, as to the most effective ways to accomplish that end.

In the Ohio Asbestos Litigation (OAL) Case Management Plan, created for District Judge Thomas D. Lambros of the United States District Court for the Northern District of Ohio, Professors Eric D. Green and Francis E. McGovern formulated a strategy for developing sufficient information for counsel to evaluate a case before the parties incur major expenses for depositions and trial prepara­tion.98 Under the OAL plan, the parties spend the first 280 days after the complaint is filed responding to pleadings and engaging in standardized discovery, including a deposition of the plaintiff and co-workers and extensive exchanges of information relating to product identification. On the 330th day, the plaintiff is expected to submit a demand. On the 360th day, a settlement conference is scheduled. Trial is scheduled for the 480th day. Discovery relating to expert witnesses is deferred until after the settlement confer­ence.96

The reason for this schedule is to give the parties sufficient information to evaluate the case, including damages, before they incur the major costs of discovery of expert medical and scientific evi­dence. The bargaining range will be greater before the parties incur such costs than it will be after such costs are incurred.97

The issue is whether a trial date 120 days after the settlement conference is sufficiently close to induce the parties to settle. Participants at the asbestos conference expressed considerable skepti­cism about the prospects for success of this method outside of the court of its origin. The primary reason for this skepticism was that the plan assumes that counsel will make the cost savings known to the parties and that these savings will outweigh the savings to de­fendants resulting from delayed settlements. Some of the participants posited that attorneys would not communicate this informa­tion to their clients in a positive manner and that the interests of both the clients and the attorneys might be served by prolonging the litigation.

Surviving its initial test, the OAL plan produced settlements in the first cluster of ten cases.98 Future results from the Northern District of Ohio, and perhaps from other courts, will be required to test the viability of this plan. In the interim, the traditional approach focuses on the initiation of final pretrial preparation, such as requiring submission of a pretrial statement, as the demarcation point for serious negotiations.

  1. Lambros et al., supra note 45, at 10-12.
  2. Id. at 30-31.  In addition, the special  masters developed a computer-based
    method of comparing the cases with prior settlements. Approximately 350 items of
    information, such as age, sex, dependents, period of projected loss of earnings, diagnosis, and prognosis, are fed into the computer and compared with information from settled cases. This results in identification of the judgments in the three cases most similar to the plaintiffs, information that is then communicated to the parties. The purpose is to create a realistic floor and ceiling for the initiation of negotiations,
  3. See generally G. Bellow & B. Moulton, The Lawyering Process 479-95 (1978);
    Note, An Analysis of Settlement, 22 Stan. L. Hev. 67, 70-80 (1969).
  4. First Ten Cases in Cleveland Asbestos Suits Settled in Major Breakthrough, 2
    Alternatives to the High Cost of Litigation 1, 3 (June 1984).