In the Corpus Christi case, plaintiff Reathy was represented by Baron & Budd...
Reportedly the firm had sent to Reathy's deposition a first-year associate who proceeded to hand over to the opposing lawyer a stack of papers without realizing it contained an extra document he certainly did not intend to hand over.
That document was a 20-page memo with the title "Preparing for Your Deposition," and it consisted largely of talking points. "It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER," the memo advises. "Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another....You NEVER want to give specific quantities or percentages of any product names....Be CONFIDENT that you saw just as much of one brand as all the others. All the manufacturers sued in your case should share the blame equally!"
"Product identification" is typically a crucial issue in asbestos suits. Prevailing legal doctrine requires a showing that the complainant was exposed to particular defendants' products, and the more different makers the better from the lawyers' perspective. Seldom is there any independent way to verify which products were used at workplaces decades earlier, which can leave workers' memories as the only evidence.
"How well you know the name of each product and how you were exposed to it will determine whether that defendant will want to offer you a settlement," the document explains. "You will be required [to] do all this from MEMORY, which is why you MUST start studying your Work History Sheets NOW!" (The Work History Sheets incorporated the planned allegations of which products would be said to have been encountered at which workplaces.)
What if defense lawyers get skeptical? "You may be asked how you are able to recall so many product names. The best answer is to say that you recall seeing the names on the containers or on the product itself. The more you thought about it, the more you remembered!" And quit worrying: "Keep in mind that these attorneys are very young and WERE NOT PRESENT at the jobsites you worked at. They have NO RECORDS to tell them what products were used on a particular job, even if they act like they do....The best way to respond to this kind of question is `Yes, I am SURE I saw it there!' or `I KNOW it was that brand because I saw the name on the container.' "
Over the years asbestos defendants had grown quite certain that they were dealing with a huge volume of less-than-forthright plaintiff testimony, as a teacher grows suspicious when the class hands in identically worded essays. As Johns-Manville and other leading manufacturers of asbestos went bankrupt, for example, new complainants abruptly ceased remembering working with those makers' brands.
"Remember to say you saw the NAMES on the BOXES," the memo says of pipe covering and block insulation--the problem here being that workers might "remember" seeing brand names on these products themselves when in fact they weren't stamped with makers' names. Although some of the highest dust exposures occurred during demolition work, "Unless your Baron & Budd attorney tells you otherwise, testify ONLY about INSTALLATION of NEW asbestos material, NOT tear-out of the OLD stuff. This is because it is almost impossible to prove what brand of material was being torn out...."
Defense attorneys may try to ask trick questions about products that weren't in use during your time on the job, but your lawyer will object: "[L]isten carefully to your Baron & Budd attorney's suggestion. Some examples are: `You didn't see that product before the 1960s, right?' Your attorney will not ask you to say something wrong." That's why you should pause after any question: "Make sure you give your attorney TIME to object before blurting out an answer!"
Make sure to keep your lawyers' options open. "You should name all the products YOU RECALL, but be sure to say there were others, too. This way, your co-workers can testify about brands you cannot remember yourself....It is VERY important to say that there were LOTS of other brands. You just cannot recall ALL the names!" Whatever you do, brazen it out: "You must be CONFIDENT about the NAMES of each product, what TYPE of product it was, how it was PACKAGED, who used it and HOW it was used...." And while you may have to let the opposition see your work history sheets, "Any other notes, such as what you are reading right now, are `privileged' and should never be mentioned."
How did Baron & Budd react when this document came to public light? With the same strategy pursued so brilliantly by the Clinton White House:
not only refusing to apologize for anything, but proposing that they are the real victims.
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