In at least three districts, the selection of judges has been difficult. One feature that distinguishes those three districts is that none of them had a volunteer or committee of volunteers come forward during the early years of the asbestos litigation to establish a management plan. In two of the districts, there are large backlogs of civil cases (in one of these districts, the backlog is increasingly composed of asbestos cases). In the same two districts, the disposition rate has been low.86
In two of the three districts, all of the cases were assigned to a single judge who did not volunteer for the assignment. In both of those districts, the assignment was made to a newly appointed judge who received no special credit or relief from other assignments. While the caseload grew, these draftee-specialists gave priority to other cases and did not devote many resources to asbestos litigation. In both of these districts, lawyer-interviewees were more likely to communicate their impression that federal judges do not like asbestos cases.
In these same two districts, the assignment of the draftee-specialist judge was open-ended. There was no provision for other judges of the court to become involved in the ultimate trial of the cases or for successors to take over the workload of the specialist. By way of contrast, in four of the six courts that use specialists, the role of the specialist is limited, and either a committee of the judges or the entire court handles trial assignments. In the other two courts,
86. See T. Willging, supra note 4, at 35-39. See also Hensler, supra note 1, at 84-85, 91,
volunteer-specialists created innovative procedures that eased the burden of the cases without the need for direct assistance from other judges. (Hereafter, the term specialist will be used to refer only to those two judges who have assumed full responsibility for all asbestos cases pending in their courts.)
Specialization carries a danger of boredom arising from the tendency for cases to become repetitive. Innovative procedures help to avoid such problems. Use of special masters may also have a secondary benefit of maintaining a high level of interest in cases that otherwise might become routine.87 A side effect of implementing innovative procedures is that successful management of asbestos litigation may enhance the professional reputation of a judge.
In summary, asbestos litigation benefits either from an innovative plan, implemented by a volunteer-specialist, or from the active involvement of an entire court or a sizeable committee. Judges should not be drafted and expected to become specialists for the indefinite future. Collegial support seems essential for successful management of a major collection of cases. Even volunteer-specialists expressed the need for support from other members of the court to assist with nonasbestos cases or to conduct asbestos trials or both. Both specialist judges report having such support.
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.
In the early stages of asbestos litigation, that information was difficult to obtain. Discovery of the available evidence, however, has accumulated for each jobsite so that it is frequently possible to identify invoices and co-worker testimony that will confirm or refute plaintiffs claims without extensive new discovery. At least one plaintiff firm has computerized records of such information.
In the Eastern District of Louisiana plaintiff and defense lawyers jointly established a document depository, accessible to all lawyers, that includes documents from all cases, such as medical records, depositions (including depositions and documents from other jurisdictions), medical articles about asbestos dating back to the nineteenth century, and documents relating to each defendant.65
On the other hand, in a few jurisdictions, the pretrial process remains unorganized, resulting in unfettered contentiousness. Discovery battles highlight the need for a settled process to exchange information, but counsel continue to squabble and resist, perhaps representing the dominant legal culture of their locale. Some courts further distance themselves from resolution of the cases by delegating pretrial functions, including monitoring of discovery disputes, to magistrates, who have little power to control the general strife or bring cases to trial.66 The absence of firm trial dates and realistic discovery cutoffs in those jurisdictions seems to add fuel to such strife.