If you know anyone who was a party to a lawsuit in the days before Gmail, they probably had a whole bookshelf full of binders of documents related to their case. Even relatively simple lawsuits require huge amounts of paperwork, even though much of that paperwork is digitized these days. While trees might breathe a sigh of relief about the fact that law offices are much closer to being paperless than they were 20 years ago, lawyers and law firm employees still have to read an enormous volume of documents, even if they are now reading most of them off of a screen. If you file a mesothelioma lawsuit, a lot of those documents are about you. The bad news is that this means that your lawyer and the defendant’s lawyers will find out a lot of information about you that you would prefer to keep private. They get to read your medical records, bank statements, and credit card statements, which means that they will find out that you have been obese since you were in your 30s and that, until you got sick, you used to spend more money on leisure travel than you could afford. The good news is that it is not your job to scrutinize every line of every medical bill and bank statement and figure out how this shows that you do or do not deserve compensation from the defendant for your mesothelioma treatment. Your lawyer will ask you for a lot of documents, but once you provide them, it is your lawyer’s job to find evidence in them that proves your claims. Your lawyer will also search for documents that you yourself are not responsible for providing; for example, your lawyer will request documents from the defendant, research previous court decisions, and consult expert witnesses.
The Importance of Documentation in Legal Cases
At jury trials, the lawyers’ oral arguments and cross-examination of witnesses persuade the jury of the correctness of one side or another’s interpretation of events, and so do exhibits such as photographs, videos, and, in criminal cases, items recovered from the crime scene. Any argument that a lawyer makes or piece of witness testimony that the jury hears at trial is the result of many hours of research on the lawyer’s part. Meanwhile, the lawyers will have spent months, or even years, arguing before the judge about which pieces of evidence and testimony to present to the jury and which ones to exclude.
Meanwhile, all of this only happens if the case goes to trial. Most personal injury lawsuits settle before the case goes to trial. If your case goes to trial, there may or may not be a jury present. The Sixth Amendment to the United States Constitution guarantees the right to a jury trial in criminal cases, but mesothelioma lawsuits are civil cases, not criminal ones. Each state has its own laws about jury trials in personal injury cases such as mesothelioma lawsuits.
In other words, the big payout in your case will probably take the form of a settlement, in which your lawyer and the defendant’s lawyers agree on an appropriate amount of compensation, instead of a trial, where the defendant insists all the way to the end that they do not owe you anything, and then a judge or jury decides how much the defendant should pay you. In either case, the lawsuit only gets to the final stage after a long process of discovery, which often lasts more than a year. During discovery, the plaintiff and defendant request documents from each other and review them. In other words, your lawyer studies all the evidence that the defendant plans to present at trial, anticipates what arguments the defendant will make based on the evidence, and tries to think of counterarguments. At the same time, the defendant does the same thing with your evidence.
Your Medical Records Are the Star Witness in a Mesothelioma Lawsuit
In a mesothelioma lawsuit, you are trying to prove that you have mesothelioma and that your mesothelioma developed as a direct result of the defendant’s negligence. Therefore, your medical records play a central role in proving your case. The tissue biopsies that persuade doctors and health insurance companies that you are a candidate for mesothelioma treatments such as surgery, chemotherapy, and radiation are more than sufficient to persuade judges, juries, and defendants that you have mesothelioma and are not faking your illness. (While it sounds unthinkable that a defendant would accuse a plaintiff of pretending to have cancer, allegations that patients are faking or exaggerating their symptoms in lawsuits where the plaintiff’s signs of ill health do not show up so easily on diagnostic images, such as chronic pain and psychiatric symptoms.)
The plaintiff’s pre-existing medical conditions and medical risk factors are often a point of dispute in personal injury lawsuits, including those involving occupational diseases like mesothelioma. Approximately 80 percent of mesothelioma cases can be clearly linked to occupational exposure to asbestos. Therefore, if you previously worked with asbestos, it should be easy for you to show causation. Despite this, if you have a history of cigarette smoking or heavy consumption of alcohol, the defendant might try to argue that these lifestyle factors increased your risk of developing cancer. Defendants are especially likely to try this in states that follow comparative fault doctrines, where courts divide the fault for preventable injuries among two or more parties.
Legal and Financial Records Have an Important Role, Too
While your medical records are what show that you have mesothelioma, it is your medical bills and other financial documents that show the amount of financial losses you suffered as a result of being affected by mesothelioma. These records will show how much you paid for all of the treatments you received. You should also keep a journal of how much money you spend on driving to doctors’ appointments and parking in the parking garages of hospitals and doctor’s office complexes. If you have to travel out of town for treatment, you should also keep track of how much you spend on hotel accommodations while you are away from home. Be sure to keep your bank statements and credit card statements to prove that your records are accurate.
In most mesothelioma lawsuits, plaintiffs seek economic damages for past and future medical expenses and for past and future lost income. To prove how much income you lost because of your mesothelioma illness, consider the income you used to earn before you had to retire because of your illness, as well as how much money you would have earned and how much you could have contributed to your retirement accounts if you had not gotten mesothelioma. If your spouse or another family member had to leave the workforce or reduce their work hours in order to transport you to medical appointments and otherwise attend to your care, you might also be able to count the amount of income they missed out on toward the economic damages in your lawsuit.
Published Research and Case Law
Especially if your case goes to trial, you will have to rely on more than just your own documents. Your case is more likely to go to trial if the defendant disagrees with you about whether they could reasonably have known that you were being exposed to asbestos at your job; another reason that your case might go to trial is if the defendant denies that the treatment you have received for mesothelioma was medically necessary.
In the former case, your lawyer will research previous cases where the facts were similar to the facts of your case, specifically, where the plaintiff worked in a job similar to yours and where a similar length of time passed before the plaintiff received a mesothelioma diagnosis. A lawyer who has previously represented plaintiffs in mesothelioma lawsuits will be familiar with your state’s landmark rulings in mesothelioma lawsuits and with your state’s statutes about asbestos safety and about personal injury lawsuits. (For example, some states have caps on the amount of money that courts can award for pain and suffering in personal injury lawsuits.)
In the latter case, your lawyer will seek the help of medical expert witnesses. Your own doctors might testify about the progression of your disease and about why they recommended the treatments they did, but medical expert witnesses will help the jury see the big picture. The expert witnesses are oncologists and doctors in other specialties related to your treatment, but they have not treated you personally. They may speak about their own clinical experience treating mesothelioma patients. They might also cite published studies about the epidemiology and prognosis for mesothelioma and about the appropriateness of certain treatments. Most states follow the Daubert standard when deciding which studies medical expert witnesses can cite. The Daubert standard requires the studies to be clinical trials published in peer review journals; the studies must clearly state their methodology and rate of error. Additionally, the Daubert standard requires the judge to review the expert’s testimony before the expert can present it to the jury. A few states follow the Frye standard, which simply requires that the information the medical expert presents to be widely accepted in the medical community.