Trial

As tables 5 and 6 indicate, trials are rare events. The norm is for a judge to spend about three weeks, but perhaps as long as five weeks, conducting the first trial. By developing standard rulings and streamlining the trial in other ways,71 courts generally reduce the time for subsequent trials to about five to ten days. In the class action trial in East Texas,72 plaintiffs’ case was presented in about twenty-five days of trial. The presiding judge estimates that a dis-trictwide class trial would take thirty days; trial of four cases, rep­resenting a cluster of thirty, took five days.73 Two other districts

  1. See the discussion supra at note 34.
  2. For extensive consideration of alternative trial structures, such as consolida­
    tion, class actions, and bifurcation, see the discussion infra at notes 218 to 308.
  3. See T. Willging, supra note 4, at 31-35 for a discussion of some of the proce­
    dures used to streamline asbestos trials.
  4. Jenkins v. Raymark Indus., Inc., No. M-84-193-CA (E.D. Tex. Sept. 19, 1986),
    782 F.2d 468 (5th Cir. 1086) (class certification affirmed).
  5. Newman v. Johns-Manville, No. M-79-124-CA (E.D. Tex. 1984), discussed in D.
    Hensler, supra note 1, at 42, 65.

 

 


reported that the five-day figure, about the average for trials in those districts, was the norm for asbestos cases. In one district, the estimate was seven days, but many judges in that district use re­verse bifurcation (trial of damages first, typically taking two days) and rarely conduct a full trial. In another district, respondents esti­mated ten days, but there had not been a trial since 1984. In four districts, there had been not been any trials recently enough to support an informed estimate.

In one jurisdiction, respondents expressed a need for more trials to clarify the law and set values for cases involving serious inju­ries. In another jurisdiction, parties anticipated that a jury trial would be necessary to support values for cases from a new work­site.

Districtwide stays of all asbestos litigation, pending resolution of appeals, may have impeded dispositions in one district. On the other hand, the stays may have simply validated a de facto delay relating to the availability of judicial resources.

Scheduling of trials is the dominant need in asbestos litigation.74 In those districts with delays in dispositions, lack of trial dates is reported to be the primary cause. A major factor implicated in the scheduling of trials is the court’s assignment system for asbestos cases.

74. See also T. Willging, supra note 4, at 24-31.