How to Win an Asbestos Settlement
If you have had asbestos exposure which led to mesothelioma or a different asbestos-related condition, then you can seek an asbestos settlement, or mesothelioma settlement. You need to realize that this can be a long and costly process. Many asbestos cases settle, with the average settlement amount between and .4 million dollars.You will almost certainly need to hire an experienced attorney to help you through this process.
Determining your Injuries and Financial Losses
Begin by visiting your primary care doctor.As soon as you begin to have concerns about possible exposure to asbestos, no matter how slight, you should see your doctor. Inform the doctor about the level of your exposure, the timing, and any health problems you have experienced. It is important to be seen as early as you suspect you may have a problem.
- Mesothelioma symptoms generally include breathing difficulty or pain, persistent coughing, unexplained wait loss or loss of appetite, or chest pain and heart murmurs. If you experience any of these symptoms, you should see a doctor immediately.
- Keep a record of any payments you need to make for these visits. You will not be able to recover amounts that are already covered by your health insurance. You should record any copayments and any payments you need to make for medications.
- Keep a record of all medications that are prescribed for you. Record the cost, number and type of each.
See a specialist.Ask your primary care physician to refer you to an oncologist, who specializes in cancer related illnesses or diseases. If possible, ask to see someone who has specific experience with asbestos-related illnesses. You will need a detailed diagnosis to support your case.
- Be sure to get a copy of any doctor’s notes.
- Ask the doctor if he or she will be willing to testify on your behalf either at a deposition or at trial.
Measure your lost wages.You should document any lost wages as a result of your illness. This includes time that you need to take to visit doctors as well as time that you lose from work because you are ill. Later on, your lawyer will be able to help you determine if some time is or is not relevant for a lawsuit. But for now, just record all of it.
- Keep track of dates, specific number of hours, and reasons for lost time. It would help to make some kind of spreadsheet or keep a notebook with categories.
Keep track of lost personal time.In many cases, the loss of time in your life is as important as the illness itself. This includes time that you miss spending with your family because you may be hospitalized or bedridden. For now, don’t worry about how important any particular entry is. Just keep a complete record. Your attorney will help you sort it out as you prepare for trial and negotiations.
Hiring an Experienced Asbestos Attorney
Ask for references.Ask your colleagues or coworkers for references, especially if these are coworkers from the same place where you believe you came in contact with asbestos. Speak with these colleagues about their experience, and find out how satisfied they were with their attorney.
Use a reputable online search tool.Be cautious about just pulling an attorney based on advertisements. There are legal websites that offer search tools specifically for attorneys with experience in these cases. If you focus your search on legal directories, rather than advertisements, you are more likely to find better quality candidates.
- You may start with the web site of the American Bar Association. From the home page, www.americanbar.org, if you select the tab “Get Legal Help,” you will be redirected to a map of the U.S. Choose your state, and you can find a directory of attorneys who can help you, arranged by topic.
- The legal information site Nolo.com contains a lawyer directory arranged by topic. Look for attorneys under the category of Mesothelioma-Asbestos who are near you.
Do additional online research of possible attorneys.Finding an attorney who claims in a directory to have certain experience is not a guarantee. Try searching for stories or articles online about that attorney or his or her law firm. Chances are good that if there was a substantial settlement or legal victory, there would be some kind of story about it. You may also find other, more general information describing the attorney.
Ask the attorney for references to prior clients.If an attorney has had satisfied clients, then he or she should be able to put you in touch with some of them. Ask the clients about their satisfaction level. Ask specifically about the attorney’s level of communication, support, skill in negotiating, and their satisfaction with the outcome.
Interview the attorney directly.Treat this meeting as a job interview. When you hire an attorney, you are hiring an employee who will work for you. You need to make sure that you get someone who will communicate with you to your satisfaction, and who can explain the law in a way that you understand it. Feel free to ask any questions that you believe are important to you. Specific things to find out include:
- the attorney’s opinion of your particular case (be cautious of any attorney who will guarantee victory)
- the attorney's or firm's experience handling prior asbestos or mesothelioma cases
- whether the attorney will be doing most of the work or delegate it to junior associates. In some cases, delegation is good, because it may reduce the billable rate that you pay. But you need to know who will be working on your case.
- the person you can contact with questions. Will you call the senior partner directly, or a junior attorney or paralegal? Again, one answer is not necessarily better than another, but you need to know.
Learn about the attorney's billing system.Most mesothelioma cases are handled on a contingency fee basis, where the attorney will get paid a percentage of your eventual collection. But make sure that you understand what the percentage rate will be and when and how the attorney is to be paid. You should be able to negotiate the percentage rate. Don’t feel that you have to accept whatever percentage the attorney charges.
- Ask separately about payment of costs. In addition to the attorney’s fee, you are probably responsible for costs as the case goes on. This can include everything from photocopies and filing fees to travel expenses to interview witnesses and the payment of expert witness fees. Make sure you understand the likely range and how much you can control the costs. Find out, also, if you will be responsible for paying the costs as the case progresses or if they can come out of the settlement money at the end.
Preparing for Trial
Act quickly after a diagnosis.In most states, the statute of limitations for a personal injury claim is from one to five years, usually measured from the first diagnosis. Sometimes, a defendant may be able to argue that the statute of limitations should be measured from the first date that you should have known that you were affected. Therefore, as soon as you believe that you may be affected by mesothelioma or any other asbestos related illness, you should begin to take action.
Research outcomes of other asbestos cases.The Internet contains several sources of information regarding other asbestos awards and settlements across the country. Review these to get an understanding of the average size of awards. This will give you an idea of what you may expect. This research may also help you identify potential defendants. Some research sources that are available include the following:
Identify potential defendants.Your attorney will work with you to identify defendants. In general, the defendant is the person who is responsible for your injury or illness. But in an asbestos/mesothelioma case, you may have multiple options. Defendants can include your immediate employer, the manufacturer of the asbestos product in question, the owner of the building, or other individuals or companies. It is important to identify a defendant who actually has the ability to pay the amount of money that you are hoping to receive in settlement.
- In one extreme example, a plaintiff filed a lawsuit and named 200 individual and corporate defendants.Most cases will not name this many, but you do want to include anyone with a connection to your illness or injury.
Negotiating a Settlement
File a complaint.When you are ready, your attorney will prepare and file a complaint on your behalf. The complaint will name the defendants and make allegations that those defendants knew or should have known that exposure to asbestos would cause your illness. Whether you proceed all the way to trial or use the complaint as a basis to open settlement discussions, this is usually the first step.
- In some areas, as a result of prior cases that have been settled, various companies have already established what are known as asbestos settlement trusts. Your attorney can help you research these, and you may be entitled to file a claim for recovery against a trust, without actually filing a complaint in court.
Make an initial demand.An experienced attorney or legal team will best know how to strategize the timing of a demand. Especially if you have multiple defendants, you need to plan carefully how you begin negotiations. Talking with one defendant is likely to affect discussions or settlements with other defendants. At some point, the negotiations will need to begin by making a demand for payment of an amount of money.
- Consider lost wages, pain and suffering. All the notes that you kept, early in the process, will come back to help determine your demand.
- Include both compensatory and punitive damages. Compensatory damages is the term for the amount of money that you need to recover in order to compensate you for lost wages and medical expenses. Punitive damages are an extra amount that courts can award as punishment. This is often where the award becomes quite high.
- Account for attorneys’ fees. Whether you take your case to trial or succeed in obtaining a settlement, you will need to pay your attorney. If you are paying by the hour, these fees can be quite high. Many attorneys will handle a case like this on a contingency fee basis. This means that the attorney will be paid out of your settlement or trial winnings for a percentage that you agree upon at the beginning.
- For example, a reasonable contingency fee may be about 30%. This means that if you recover a verdict or a settlement for one million dollars, your attorney will receive 0,000 and you will receive 0,000. If your objective is to come away with a million dollars for yourself, you would need to demand (and recover) ,428,571.
Proceed with discovery.The discovery process is a phase of trial preparation. During this time, you will investigate the possible causes of your injury and work to build a case against one or more of the defendants. At the same time, the defendants will be working to gather evidence to show that your injuries are not their fault. Discovery includes reviewing files and documents, interviewing experts, and submitting interrogatories to learn about the defendants’ trial preparation.
- Better discovery and trial preparation often leads to a stronger bargaining position and a higher settlement or trial award.
Review the strength of your case.A settlement always requires a judgment, based on the strength of your court case. If, through consulting with your attorney, you believe that your case in court would be very strong, you can demand a higher settlement amount. On the other hand, if you and your attorney think that your court case is questionable, then you may need to accept a somewhat smaller amount.
Discuss payment options as part of your settlement.If you and the defendant agree on an amount, the next issue to consider is the method of payment. For large payments, many defendants may request to pay in installments over time. If you are going to agree to this, you may want to demand interest to compensate for the delay, or negotiate for a higher flat rate.
- Although it may be unpleasant to consider, depending on the severity of your case, you may need to consider dying from the asbestos poisoning. With that in mind, you should negotiate for a beneficiary to receive the remainder of your settlement payment. Otherwise, the payments could end with your death and your survivors may not collect.
Be prepared to end negotiations and go to trial.The strongest bargaining position results from being able to end the negotiations and believing that you are ready to go to trial, and win. If you are desperate to settle quickly, your recovery is likely to be much smaller.
Claiming from an Existing Asbestos Settlement Trust
Search for pending asbestos settlement trusts.In many jurisdictions across the U.S., asbestos cases have already been tried or settled. As a result, several companies have established asbestos settlement trusts through bankruptcy proceedings. These trusts exist to receive, review and pay claims for people who have suffered from asbestos poisoning. If you lived in these locations or worked for these companies, you may be able to file a claim.
- An experienced asbestos attorney is likely to be aware of these cases and should be able to determine if you are eligible for one or more claims.
- If you conduct a simple search on the Internet for "asbestos settlement trust," you are likely to find many references to pending trusts.
File a claim.If you find a trust that you believe applies to you, read the instructions for filing a claim. You generally will need to demonstrate your own diagnosis and prove the connection to the employer or manufacturer involved. This can usually be accomplished by providing details of your work history, including when and where you came in contact with asbestos.
- Pay attention to the filing deadlines, if any. Because these trusts are often connected to bankruptcy cases, they do not remain open indefinitely. You will need to file a claim before a published deadline. If you find that a deadline has passed, you may still be able to submit a claim if you can prove that you should have received notice but did not. Contact the attorney or law firm identified in connection with the trust.
QuestionWhat if you had a regular life insurance policy, and the death was ruled as an accident? Will the insurance company have to pay for accidental death?wikiHow ContributorCommunity AnswerInsurance companies are very often named as defendants in asbestos cases. I cannot give a quick answer about interpretation of your particular policy. Your attorney will have to review the terms of the policy and then decide how to proceed. Quite often, the insurance policy will pay out whatever amount it covers (in your case, this may be the accidental death amount), but you would still be eligible to proceed with a lawsuit or settlement demand against other defendants for additional compensatory and punitive damages.Thanks!
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