One of the more novelistic enjoyments of our present age is the spectacle of silver-haired men lying through their faces for money.
In fact, so great is the spectacle that it would be a reason for keeping our legal system going, even if the brotherhood of man should be achieved, and there were no more lawsuits.
Luckily such concerns are not yet upon us, since after 25 years we still haven't gotten through the mountain of asbestos litigation. On the contrary, we have mechanized it to such an extent that it would be a shame if it had to end.
This is the significance of a document recently revealed on the letterhead of Baron & Budd, a Dallas law firm.
It pertains to asbestos litigation, for which dozens of new plaintiffs are deposed weekly in law offices across Texas. Workers are asked to recall from 30 or 40 years earlier what brands of materials they had worked with, whether they had inhaled the fibers, and whether they feel sick now.
With so many plaintiffs, weighing the independent recollections of each would be tiresome legal work. Settling cases would take forever if lawyers on both sides had to make sense of each plaintiff's work history, his memories of which products he used, and in what proportion.
And in the view of the judges who bit-by-bit established our current body of asbestos law, tens of thousands of workers who were exposed are entitled to compensation anyway even if they have no diagnosable illness.
How much easier and quicker, then, if the victims could all provide not just a standardized, mechanized account of their "exposure," but also a standardized, mechanized account of their "impairment."
This, happily, is what the Baron & Budd document endeavors to supply.
"It is important to maintain," the prep sheet advises, "that you NEVER saw any labels on asbestos products that said WARNING or DANGER;"
"Do NOT say you saw one brand more than another, or that one brand was more commonly used than another;"
"Your Baron & Budd attorney will not steer you wrong," the document advises, while suggesting that a plaintiff may want to claim he had to buy a "rider mower because you just couldn't use a push mower anymore."
So it goes for 20 pages. It was apparently used in conjunction with photos of old asbestos packaging that Baron & Budd provided to help clients "remember" which brands they were exposed to. Nowhere does the document suggest telling the truth.
To defense attorneys it was like a ray of sunshine falling through a murky sky.
For what had once seemed mystifying now seemed clear--why so many plaintiffs had given such uncannily similar testimony. And why, when a particular manufacturer ran out of money and filed for bankruptcy, its products were no longer remembered as being present at worksites decades earlier.
This seemed to hint at a previously unknown form of quantum action at a distance, by which events in the present can alter events in the past.
Whether Baron & Budd coached its clients to perjure themselves has now become a subject of litigation itself. In a courtroom in Ohio, one partner pronounced himself "shocked" by the document, and claimed he never saw it before.
In a Texas court, the firm's celebrated boss, Fred Baron, claimed he hadn't seen it either, but pronounced the document kosher and declared that, when everything was cleared up, the whole story would seem "fairly humorous." He also vowed that his firm would never, ever use the document again.
We must pause here to compose ourselves, having been exposed so frontally to the majesty of the law.
Some sticklers for justice will undoubtedly find fault with all this. It is true that some workers have suffered horrible, excruciating diseases from asbestos and are even now dying of those diseases.
It is true that the funds potentially available for compensating these victims and their families have been dissipated upon more dubious and tenuous claims, which are advanced upon the courts in the thousands by armies of attorneys using assembly-line techniques.
But, what the heck, the lawyers are making pots of money, and will keep making pots as long as they can keep throwing more cases at the system than the system can intelligently evaluate. Out of nobody's plan evolved a solution that stretches itself out for the least meritorious case rather than the most. Let it be said that defense attorneys frequently conspire in this too.
"Asbestos litigation today is based largely on sham testimony," says Lester Brickman of the Benjamin N. Cardozo School of Law, who will go to bat for the defendants as an expert on legal ethics. "Many judges know this but choose to ignore it."
He calls the document "just concrete evidence of what most everyone already knew."
Mr. Baron takes issue with all this. He says the document is "privileged," and he's suing to get it back. On Friday he showed up in court with a deposition of his own from a legal ethicist.
"We're dealing with blue-collar workers," Mr. Baron says, who are often poorly educated and readily intimidated by "white-shirted attorneys." He just wants to make sure they put up a good deposition, because "the case can very quickly be lost at that point." But nobody tells them to lie, he adds.
He also says the document was drawn up and used by a single paralegal and nobody else.
Okay, but the question remains whether the it accurately characterizes what goes on in asbestos litigation.
Keep an eye peeled toward the Texas courts in coming weeks. Defense attorneys for companies like Borg Warner, W.R. Grace, Pittsburg Corning and Raymark may end up arguing their clients were duped into making settlements with plaintiffs who were reciting from a script instead of giving a true account of their exposure history.
As for Mr. Baron, he started out as a Naderite but long ago was propelled into the plutocracy thanks to asbestos litigation. Nowadays his machine deposes a hundred plaintiffs a month, and handles 10,000 asbestos cases at a time. Once upon a time, though, he was considered something of a hero for taking on the asbestos industry on behalf of the truly injured when it was deemed a risky thing to do.
Such people always seem to hang on too long for the good of their reputations.
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