Organization of Counsel

If not altered by the court or the parties, the sheer number of lawyers involved in asbestos litigation can be an overwhelming complication. Simple matters like sending notices to parties or scheduling hearings are major tasks. Hearings become complex and arguments repetitive when, as one judge described it, lawyers are “up and down, like pistons.”

Implementation of the Wellington plan to date has served to reduce the number of lawyers representing defendants from ap­proximately 1,260 to approximately 60 regional law firms. In a spe­cific case, the effect is to reduce the number of defense lawyers from approximately twenty to about three to five. In addition to the obvious reduction of transactions costs to the defendants, every aspect of the case becomes simpler, including scheduling deposi­tions, notifying defendants, negotiating settlements, and conducting trials. Because Wellington’s participation in a case will be trig­gered by showing liability of one signatory to the Wellington plan, extensive proof of exposure to a product of each defendant is no longer essential.52

In at least two jurisdictions, respondents reported that defend­ants had agreed not to file cross-claims against each other. Such agreements simplify the litigation, as do judicial orders deeming such claims to have been filed, avoiding the duplicative paperwork of cross-claims and answers.Ba

  1. A claim or verdict against one signatory is sufficient to invoke the involve­
    ment of the facility. Some lawyer-respondents, however, reported that Wellington
    internally allocates responsibility based on proof that plaintiff was exposed to the
    product of a particular defendant, thereby encouraging defense counsel to insist on
    product identification evidence in settlement negotiations.
  2. See, e.g., Johnston v. Johns-Manville Prods. Corp. (W.D. Pa. Jan. 23, 1980)
    (unpublished order). See generally T. Willging, supra note 4, at 21-22.

 

TABLE 2

Complicating and Simplifying Factors in Asbestos Litigation

Complicating Factors Simplifying Factors
Organization of counsel Numbers of parties and lawyers

Delegation in law firms leads to delay in evaluation of cases, settlement at courthouse

steps or later

Common defense agreement

(Wellington) reduces numbers

oflawyers and parties

Deeming of cross-claims and

“opt-out” procedure for motions

Unresolved

Settlements Wellington disrupts settled

bargaining patterns and

reduces mass settlements

Lack of alternatives to court filings

Complexity of communications with multiple counsel

Lack of authoritative rulings and settlements

Lack of settlement formulas

Lack of sufficient trial dates to reduce backlog

Unresolved

Claims facility planned

Wellington provides stable, simplified communication

Trials, rulings, and settlements have accumulated

Ranges of values developed

from prior trials and

settlements

Partially unresolved

Increasing clusters of

cases

Special assignment systems

Alternative trial structures

Pretrial Reli tigation of settled issues such as state-of-art

Clogging dockets with cases oflimited impairments

Repetitive discovery

Length and complexity

Waiver of state-of-art and punitive claims in East Texas

Consolidation for resolution of common pretrial issues

Creation of inactive asbestos docket

Screening cases and plaintiffs

Accumulation of discovery materials; creation of document depositories and computer data bases

Unresolved in some districts

Trial Length and complexity Pretrial, evidentiary, and trial rulings establish format

Reverse bifurcation

 

Asbestos cases tend to be handled by lawyer-specialists represent­ing plaintiffs and defendants.54 Organization of lawyers into spe­cialists promotes simplification in at least two ways. Evaluations of cases and development of settlement formulae become easier. In addition, specialists are able to identify repetitive tasks and dele­gate them to paralegals, who prepare the information for trial or settlement in a standard, predictable format. On the other hand, such delegation may complicate settlement, because the lawyer with authority to settle may not learn the facts necessary to evalu­ate the cases until immediately before trial. In that case, routiniza-tion of pretrial preparation does not equate with simplification of dispositions.

While the dominant response was that Wellington simplifies set­tlement negotiations, that opinion was not unanimous. Simplifica­tion occurs through reduction of the number of parties to a negoti­ation and through specialization occurring as a result of dealing with one major adversary on a repeated basis. Wellington, how­ever, changes the status quo regarding negotiations and this causes disruptions, at least in the short term. Prior to Wellington, plain­tiffs could negotiate separately with a number of defendants before trial. This permitted plaintiffs and their counsel to settle early with some defendants and receive compensation that would help meet any expenses incurred by plaintiff and finance the litigation. Frequently, these settlements would be on a mass basis according to predetermined formulae.

Concentration of most defendants into the Wellington entity re­sults in hard bargaining and perhaps a shift in negotiating power and in the timing of settlements. Reports were uniform that it was difficult or, in some cases, impossible for plaintiffs to bargain with Wellington defendants prior to the week before trial. This may be a product of understaffing in the newly designated Wellington law firms. Some lawyers alleged, however, that the Wellington policy is not to settle cases that are not scheduled for trial. Wellington denies this.55 Outside of the settlements in Northern Ohio and

  1. Hensler, supra note 1, at 68-76. Implementation of representation of Welling­
    ton defendants by local counsel has drastically increased the specialization among
    defense attorneys, concentrating defense representation in about sixty law firms.
  2. Cf. Plaintiff Bar Blames  Wellington for Mounting Trial Backlog, Mealey’s
    Litig. Reps.: Asbestos, Oct. 10, 1986, at 5,159 (Tennessee plaintiffs’ lawyer quoted:
    “On the eve of trial . . . [Wellington will] talk to us, but no settlements are reached.
    This is pretty much the case around the country.”); Wellington Pledges ADR Pro­
    gram Within Six Months, id., July 25, 1986, at 4,673 (Wellington CEO quoted: “in
    our first year our achievements have included settlement of cases not immediately
    involved in trial”). This statement may refer to cases in the Northern District of
    Ohio. A Pittsburgh plaintiffs lawyer claimed: “In Ohio, there is one attitude, but in
    Pennsylvania we can’t get anything moving [with Wellington].” Id, at 5,160.

 

Chapter III

Eastern Texas,56 however, there have been no large-scale settle­ments announced with Wellington. In the short term, Wellington has altered the timing of settlements to the detriment of individual plaintiffs.

In some jurisdictions, there were complaints that Wellington counsel did not accept values established through negotiations with individual defendants and that they sought to reduce total settle­ment values.57 At the same time, Wellington counsel tried to break the pattern in which plaintiffs counsel was frequently the only source of information about the total settlement. In some jurisdic­tions, more than one law firm competes for the Wellington busi­ness; some plaintiffs’ lawyers assert that this results in posturing and saber-rattling, at the expense of good-faith negotiations. In those same jurisdictions and others, there were complaints that Wellington counsel engaged in a subtle undermining of the struc­ture of the asbestos litigation by relitigating issues thought to have been settled by standard, districtwide rulings.

The bottom line is that Wellington has indeed settled the vast majority of cases that have been scheduled for trial during its brief existence.58 It has not, however, fulfilled its promise of providing a prefiling vehicle for settlement and will not have a claims facility available until “early 1987.”59 Despite serious delays in implement­ing the claims facility and alternative dispute resolution proce­dures, Wellington shows promise of further simplification of asbes­tos litigation. Once the claims facility is established, early settle­ments should be available through alternative dispute resolution procedures. Full operation of the facility should cause a dramatic reduction in the number of claims filed in court. In the absence of

  1. See the discussion infra at notes 210 (Eastern Texas) and 143 to 145 (Northern
    Ohio). These settlements were channeled by the grouping of cases by those courts.
  2. Evidence of strife between some plaintiffs’ counsel and Wellington counsel has
    surfaced in public forums. One firm has sued the Wellington facility on antitrust
    grounds. Sweeney v. Acands, C85-2984 (N.D. Ohio 1985). Another has challenged the
    ability of Wellington to represent codefendants with arguably competing interests in
    the same litigation. Arguments Heard on Joint Representation of Wellington Mem­
    bers, Mealey’s Litig. Reps.: Asbestos, Dec. 26, 1986, at 5,512; see also Attorneys Dis­
    cuss Wellington Problems: Anti-trust Suit Possible, id., Jan. 23, 1987, at 5,659 (pro­
    posed antitrust suit against Wellington “being worked on”).
  3. As of December 1986, Wellington claimed to have settled 5,500 cases at an
    average cost of $72,000 a case, a total of $396,000,000 in settlements.  Wellington
    Said to Be Paying $72,000 Per Case, Mealey’s Litig. Reps.: Asbestos, Dec. 26, 1986, at
    5,513. See also infra table 6, showing a declining number of trials in the ten courts
    studied.

59.    Wellington Expects ADR in Place in Early 1987, Mealey’s Litig. Reps.: Asbes­
tos, Nov. 28, 1986, at 5,374. The computer system was expected to be fully oper­
ational by February 1987.

a claims facility, plaintiffs have had no alternative to filing law­suits.