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Trial vs. Settlement

Excerpted from Product Liability: Winning Strategies & Techniques by Richard J.  Heafeyand Don M.  Kennedy. Product Liability Resource Center subscribers save 10% on this book. Use promo code 218232 when placing your order at lawcatalog.com.

Tactics and Strategy in the Art of Settlement

Settlement skills are arguably more complex than trial advocacy. Both require the art of persuasion and a knowledge of psychology. 1 A settlement strategist must know¿and know well¿the client's true interest and chances of success. In the multi-issue and multi-party litigation that is so common to product liability, the skilled practitioner can manipulate the case, not only to increase those chances, but to achieve substantial monetary gain for the client. Mechanisms to limit issues, consolidate cases, avoid or select Multi-District Litigation, or class action joinder, must all be understood as options for facilitating resolution. The artist of settlement must possess sophisticated knowledge of trial tactics, cost analyses, methods of sharing and defraying costs. The settlement strategist should build alliances, while at the same time husbanding the client's privacy and confidentiality. Similarly, selecting from the multiple paths to a successful settlement requires knowledge of how the advantages and disadvantages of each might fit the unique circumstances of the client and his case.

Settlement resolution requires that the attorney wear many hats. He should be the top executive, knowing and using settlement challenges such as statutory offers of settlement, and their concomitant penalties, to call a bluff, to play options against options in the negotiating chess game using "Mary Carter" contracts, 2 partial settlement agreements, assignment of rights, and structured tax exempt financial planning. 3

Trial vs. Settlement

General Considerations

Cases end with a trial verdict, dismissal, appellate decision, or settlement. Although an attorney should not accept a case he will not try, odds are overwhelming that the case will settle. 1 This is well known, yet a settlement strategy is too often neglected in early litigation planning. Parties attack and respond, but rarely do they intelligently plan for the settlement that will almost certainly occur. 1.1

For example, a videotaped settlement documentary showing relevant aspects of the plaintiff's case could include a frank discussion of both the liability and damages aspects of the case, including conversations with the plaintiff's family, friends, and acquaintances, as well as presentations by experts, factual witnesses, and a depiction of physical evidence, charts and graphs. This is a powerful settlement tool. Among other things:

¿ "It signals how well key witnesses might perform at trial, eliminating any inclination to delay settling a case until these witnesses have testified."

¿ "It allows witnesses to tell their story in a relaxed setting . . . ."

¿ "It can fulfill the plaintiff's need to tell his or her story without the uncertainty of trial. . . ."

¿ "It shows defense decision-makers that the plaintiff's case has been well prepared and is ready for trial." 1.2

A voluntary alternative dispute resolution procedure may also be helpful, but in general is not commonly employed as a settlement tactic.

In product liability cases, as in all tort cases, shrewd settlement analysis starts with the question of whether to settle at all. 2 A strategy to "try the case" may be based on the client's psychological need for retribution, vindication or justice. 3 A rational decision, grounded on the factual and legal merits, and a prediction of costs and expenses, may also supply the reason to "try the case," 4 but no matter how or why a decision "to try the case" is made, one of the parties will be wrong. 5

If a "must try" decision is made, it should be a serious one, 6 conveyed to the opposing party without posturing. If a decision is made to try the case, the goal should be one or more of the following: 6.1

¿ A rough approximation of justice.

¿ A favorable jury verdict exerting pressure to settle other cases.

¿ A verdict setting the true value of similar cases.

¿ Ground breaking law reviewable on appeal.

¿ Insure right of appeal.

¿ Law of the case, res judicata , collateral estoppel or some resolution of complex scientific issues.

¿ A disincentive to other litigants or unmeritorious claims.

¿ On the other hand, a jury trial should not be the sole litigation goal if the attorney wants to avoid:

¿ The unpredictability of jury verdicts due to misunderstanding, bias or sympathy.

¿ Possible disclosure of confidential and privileged information.

¿ The expense of preparing for and conducting a trial.

¿ The possibility that aggressive discovery of known and unknown facts will result in unanticipated liability or a punitive award in excess of early prediction.

Extreme caution must be exercised when deciding to "try the case" at the expense of ignoring settlement planning and tactics. 7 Planning an early settlement has also been the advice of eminent statesmen 8 and jurists, 9 and the consensus of the federal trial and appellate judiciary, 10 and practicing trial attorneys. 11 Indeed, the court may not allow the settlement option to be neglected. 12 Courts will do almost anything to effect settlement short of ordering a party to settle. 13 Sanctions against a party who refuses to participate meaningfully in the settlement process have been imposed. 14 Active participation in the settlement process is a requirement of the standard of professional practice. 15 Failure to communicate all settlement offers, to investigate terms of a settlement offer, or to tender a counteroffer have also formed the basis for malpractice claims. 16

Settlement Without Litigation

The most cost effective path to resolution is to cut out the middle person¿the attorneys and courts. All parties save on attorneys' fees and transaction costs. Of course, these savings presume the parties achieve a settlement close to the one that would have been negotiated by an experienced attorney. 17

Although such settlements are rare in product liability cases, they have occurred. 18 Independent claims resolution facilities, claims estimation strategies, an order of payment, claimant outreach programs, and guarantees of procedural fairness all could be developed before claims become lawsuits. Notice of such a plan and its procedural guidelines could be forwarded to anyone notifying the company of a potential product's claim. 19 Putting such a claimant in direct contact with court-appointed mediators, or professional arbitrators, to obtain early settlement advice might also facilitate a "pre-litigation"

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FOOTNOTES

1 Shayne, "Negotiating Settlements in Personal Injury Actions," in Evaluating and Settling a Personal Injury Case, at 55 (PLI Lit. & Admin. Course Handbook Series No. 438 1992), quoting Francis Bacon on the art of negotiation.

"If you would work any man, you must either know his nature and fashions and so lead him, or his ends and so persuade him; or his weakness and disadvantages and so awe him; or those that have interest in him and so govern him. In dealing with cunning persons, we must ever consider their ends, to interpret their speeches; and it is good to say little to them, and that which they least look for. In all negotiations of difficulty, a man must not look to sow and reap at once; but must prepare business and so ripen it by degree."

Thus settlement is a creative process. The architect's pen is a more subtle tool than the wrecker's ball. See: Mnookin, "Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict," 8 Ohio St. J. on Disp. Resol. 235 (1993); Goodpaster, "Rational Decision-Making in Problem Solving Negotiation: Compromise, Interest-Valuation, and Cognitive Error," 8 Ohio St. J. on Disp. Resol. 299 (1993).

See also, Remarks by Herb Cohen, Esquire, author of You Can Negotiate Anything, before the 53d Judicial Conference of the District of Columbia Circuit, 145 F.R.D. 149, 194 (1992).

"[T]he best negotiations are ones where both sides gain, which means effective negotiators, unlike really effective litigators, do not argue, do not cite precedent, do not attempt to destroy the other side. It is not because negotiators are more noble, and benevolent, and generous. No. It is simply that you need the other side to agree, and, therefore, it's a good idea that the other side is not comatose at the end of this."

See Abrahmson, "A Primer on Resolving Disputes: Lessons from Alternative Dispute Resolution," 64 N.Y. St. B. J. 48 (1992), summarizing Fisher and Ury's book Getting to Yes, as follows:

"'Principled negotiation' consists of four basic elements: (1) Negotiation should focus on the broader INTERESTS of the parties, not their narrower positions; (2) Parties should SEPARATE THE PEOPLE PROBLEM from the substantive problem; (3) Parties should generate a variety of OPTIONS before they decide which is the best option; and (4) Parties should base the resolution on OBJECTIVE CRITERIA which are independent of each party's control.... BATNA (Best Alternative To a Negotiated Agreement),... reminds a party to leave the bargaining table when the alternative to a negotiated agreement is more attractive."

2 See § 13.06[2][a] infra.

3 For example, counsel must know and assess the tax implications, including the impact of a contingent fee arrangement. In Commissioner of Internal Revenue v. Banks, ___, U.S.___, 125 S.Ct. 826, 829, 160 L.Ed.2d 859 (2005), the Supreme Court ruled that the contingent fee portion of a litigant's recovery should be included, for tax purposes, as income to the litigant. In so holding, the Court concluded that "when a litigant's recovery constitutes income, the litigant's income includes the portion of the recovery paid to the attorney as a contingent fee." Id. , 125 S.Ct. at 829.

1 Less than 5% of the cases filed are actually tried. See: Folberg, "Use of ADR in California Courts: Findings and Proposals," 26 U.S.F. L. Rev. 343, 351 n. 23 (1992); John M. Seitman, Inaugural Address, The State Bar of California 4 (Sept. 15, 1991) ("more than 90 percent of all cases filed in California are settled before they get to trial-but settlement often comes after vast amounts of time and money have been expended on pre-trial proceedings and trial preparation").

See also: President's Council on Competitiveness, Agenda for Civil Justice Reform in America: A Report 7 (1991) ("More than 92 percent of all civil lawsuits are settled or otherwise disposed of prior to trial"); Administrative Office of the United States Courts, Annual Report of the Director (1985) (95% of cases filed settle or are otherwise disposed of before trial); McMunigal, "The Cost of Settlement: The Impact of Scarcity of Adjudication on Litigating Lawyers," 37 U.C.L.A. L. Rev. 833, 838 n. 15 (1990) ("In 1988, only 5.3% of the civil cases terminated in the federal courts ending in trial").

See: Administrative Office of the United States Courts. Annual Report of the Director, Table C-1, Table C-8 (1988) (percentage extrapolated) ("A recent study of Florida courts reveals a jury trial disposition rate of 1.0 percent and 1.6 percent for each of the years from 1979 through 1985," citing Gifford and Nye, "Litigation Trends in Florida: Saga of a Growth State," 39 U. Fla. L. Rev. 829, 855 (1987)); Cooter and Rubinfeld, "Economic Analysis of Legal Disputes and Their Resolution," 27 J. Econ. Lit. 1067, 1071 (1989) ("A chart depicting the frequency with which disputes go from prior to subsequent stages, with 'harm' at the bottom and 'appeals court trial' at the top, looks like a broad-based pyramid. A typical finding is that ten disputes settle out of court for every one that is tried"); Hogan, "Judicial Settlement Conferences: Empowering the Parties to Decide Through Negotiation," 27 Willamette L. Rev. 429, n. 4 (1991) ("During the 1990 statistical year, 95.3% of civil cases terminated in the federal district courts were disposed of without trial. Of the 173,834 cases terminated, 46,628 (26.8%) were disposed of without active judicial involvement, 119,048 (68.8%) were disposed of before trial with judicial intervention, and 8,158 (4.7%) were disposed of following a trial"); Administrative Office of the United States Courts, Annual Report of the Director Table C-5 (1990).

1.1 See Dubuc, "Resolving Cases Without Trial," 43 For the Defense, July 2001, at 43-44: "An early voluntary exchange of key information can encourage evaluation for early resolution, rather than pointing only toward a trial. Instead of initially focusing on the discovery process only as preparation for trial, a parallel emphasis could be placed on preparation for limited discovery as a step toward resolving the problem by mediation. In a situation involving complex technical legal issues and complex personal injury damage issues, knowledgeable representatives of the parties (and their lawyers) can understand and agree on reasonable compromises better than a jury with no knowledge and experience in the subject matter . . . ."

See also Craver, "The Negotiation Process," 27 Am. J. Trial Advocacy 271, 276 (2003): "Once client interests and goals are ascertained, lawyers must educate clients about the negotiation process. They should emphasize the compromises that may have to be made and begin to prepare the clients for the offers they are likely to obtain. It is best to do this in a cautious manner to avoid the undue elevation of client expectations. If client expectations become excessive, settlement discussions might be doomed from the beginning. . . . Clients should also be educated about the time it is likely to take to reach satisfactory agreements."

1.2 See, Turley, "Getting To ¿Yes' With The Video Settlement Documentary," 39 Trial, June 2003, at 50, 51 (2003) for a discussion of how a settlement documentary should be put together.

2 See King, "Are Justice and Harmony Mutually Exclusive? A Response to Professor Nader." 10 Ohio St. J. on Dispute Resolution 65 (1994) ("Litigation can be the best choice for certain cases. However, litigation carries risk. Trial preparation is time-consuming and therefore expensive. A judge or jury cannot be expected to completely agree with the perceptions and arguments of any of the parties to a case, for the simple reason that people rarely see events in the same way. Litigants lose a significant amount of control over the outcome of their case if it is decided by a judge. These considerations are certainly factors in favor of a negotiated resolution before trial").

3 Hoffman. "Valuation of Cases for Settlement: Theory and Practice," 1991 J. Disp. Resol. 1.

4 Cooter and Rubinfeld, "The Economic Analysis of Legal Disputes and Their Resolution." 27 J. Econ. Lit. 1067 (1989).

See also Gross and Syverud, 40 Law Quadrangle Notes, 74, 77 (1997) ("[T]he pattern of outcomes in personal injury trials [in a study of California State Superior Court Civil jury trials] is very different from that in commercial trials. Plaintiffs lose most personal injury trials¿that is, they do less well at trial than they would have by settling¿while defendants are more likely to lose in commercial trials. On average, personal injury verdicts are roughly midway between what the plaintiff demanded and what the defendants offer in settlement; on average, commercial verdicts are considerably larger than the plaintiffs' demand as well as the defendants' offer.").

5 Id. , 27 J. Econ. Lit. at 1074 ("These hypotheses all build on the view that cases fail to settle as a consequence of a mistaken prediction about the outcome of a trial made by one of the parties"); Interview with Raoul Kennedy, in Lynch, California Negotiation and Settlement Handbook, App. B, Sec. 17 (1991) ("A trial often means that at least one side has made a mistake in evaluating the case and assessing risk").

6 See Solovy, et al . , "Settlement of Complex Cases," in Litigation for the Non-Litigator: The Role of the Corporate Lawyer in the Litigation Process , 393 (PLI Corp. L & Prac. Course Handbook Series No. 584 1987), an excellent article on settlement in general which includes the advice that if a hard-line is consciously selected, "such an approach will be effective only if the corporation [party] consistently and openly adheres to that policy. Outsiders may be convinced not to commence litigation if they know with certainty that they will not receive one dime unless and until they actually obtain a judgment." See also: Edwards, "Alternative Dispute Resolution: Panacea or Anathema?," 99 Harv. L. Rev. 668 (1986); Fiss, "Against Settlement," 93 Yale L. J. 1073, 1075 (1984).

6.1 See Gross and Syverud, 40 Law Quadrangle Notes, 76 (1997) ("[S]cholars are unanimous in recognizing that trials are not representative of the mass of litigation disputes. They seem to be selected because of unusual rather than common features, such as high stakes, extreme uncertainty about the outcome, and reputational stakes of the parties . . . .").

7 In Settlement Conference Format and Guidelines, Chief Judge United States District Court, District of Kansas, Patrick F. Kelly recommends that counsel ask themselves some important question before deciding on going to trial, including:

"Is a trial of this case really necessary? What really is at stake? Surely your own ego isn't standing in the way! Are you that certain that you will win? What are the risks? Where are you vulnerable? Have you seriously considered your adversary's position? Have you considered the skill, experience and record of success of your adversary's counsel? What about you? What does your client really want? . . . Isn't there some way to compromise and keep your client's pride? If substantive damages are your quest, are your own views reasonable and provable? Do you have a plan? Have you considered their advocations even if you win, i.e., coverage, ability to pay?"

8 McMunigal, "The Cost of Settlement: The Impact of Scarcity of Adjudication on Litigating Lawyers," 37 U.C.L.A. L. Rev. 833, 842 n.30 (1990), quoting from Lincoln , "Notes for Law Lecture" (July 1, 1850) in Nicolay and Hay (eds.) 2 Complete Works of Abraham Lincoln , 142 (1894).

"Discourage litigation. Dissuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser¿in fees, in expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man."

9 Weinstein. "The Effect of Equity on Mass Tort Law," 1991 U. Ill. L. Rev. 269.

10 Manual of Complex Litigation 2d § 23.11 (1985).

"Many more cases are concluded by settlement than by trial. This reflects the fact that most lawyers and litigants prefer a negotiated solution to the costs, time, and uncertainty inherent in trial. Because both the expense and risk of loss are magnified in complex cases, such actions are even more amenable to compromise than routine cases . . . . The judge's initiative in suggesting settlement often facilitates negotiations by obviating the apprehension of attorneys that willingness to discuss compromise will be viewed by their adversaries as a sign of weakness."

11 Menkel-Meadow, "For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference," 33 U.C.L.A. L. Rev. 485, 497 (1985).

"It is instructive to note that despite all the academic criticism of the judicial settlement role, lawyers overwhelmingly seemed to favor judicial intervention. In a recent study of lawyers from four federal districts. Wayne Brazil (then professor, now a United States magistrate) found that a staggering 85 percent of our respondents agreed that 'involvement of federal judges in settlement discussions [is] likely to improve significantly the prospect for achieving settlement.'"

12 Galanter. "Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society," 31 U.C.L.A. L. Rev. 4. 37 (1983) ("Filings in the United States District Court...increased from 89, 112 in 1960 to 198,710 in 1980"); Interview with Judge Procter Hug, Jr., in "Circuit Wish List Under Fire," The Recorder, at 1 (July 22, 1993).

See Folberg, "Use of ADR in California Courts: Findings and Proposals," 26 U.S.F.L. Rev. 343, 348 (1992).

"In the past ten years, civil filings in California superior and municipal courts have increased between 20 and 30 percent. During the same period, the criminal case load has nearly tripled in the superior courts and more than doubled in the municipal courts . . . . The [Ninth Circuit's] total caseload has grown by 160 percent since 1978, while the number of judges on the court has increased by just 22 percent."

See: Final Report of the Eastern District of New York Advisory Group, 142 F.R.D. 185, 189, 199 (1991).

"While during a fiscal year ending June 30, 1990, civil case filings nationally declined by 2 percent, civil filings within the Eastern District rose 3.7 percent. Moreover, the number of pending cases increased from 5,886 to 6,554, a jump of 15.2 percent. Some 13 percent of these cases are over three years old."

13 First Circuit: Del Rio v. Northern Blower Co., 574 F.2d 23 (1st Cir. 1978) (lien-holder could not be compelled to participate in settlement).

Second Circuit: Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114, 116 (2dCir. 1988) (court may not compel a bona fide offer of settlement): Kothe v. Smith. 771 F.2d 667, 670 (2d Cir. 1985) (court may not sanction party for refusal to tender settlement offer until trial begins); In re International Business Machines Corp., 687 F.2d 591, 603-604 (2d Cir. 1982) (court may not pursue lawsuit parties have dismissed).

Seventh Circuit: G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989) (court may lawfully require attendance of a party at settlement conference, with authority to settle).

Eighth Circuit : In re Aschroft, 888 F.2d 546 (8th Cir. 1989) (court not empowered to impose settlement on unwilling litigants).

Federal Circuit: Cheyenne River Sioux Tribe v. United States . 806 F.2d 1046 (Fed. Cir. 1986), cert. denied 482 U.S. 913 (1987) (court has no authority to impose settlement on litigants).

See also, Manual for Complex Litigation 2d § 23.11 (1985).

"Beginning with the first conference, and from time to time throughout the litigation, the court should encourage the settlement process. The judge's first effort should usually be light-handed¿perhaps merely an inquiry whether the parties have discussed settlement. As the case progresses and both the judge and counsel learn more about it, the court should urge the parties to consider¿and reconsider¿the possibility of settlement in light of what has occurred and, perhaps more important, what may be ahead if the litigation is pursued."

Section 23.11 suggests that intervention by the judge avoids a "sign of weakness." He can be used to assess risks and gain client control.

State Courts:

California: Triplett v. Farmers Insurance Exchange, 29 Cal. Rptr 2d 741, 744 (Cal. App. 1994) ("regardless of whether defendant has a meritorious defense to a lawsuit, the decision to defend rather than settle an action has long been recognized as a matter vested solely in the defendant's discretion. For that reason, a plaintiff has no claim for 'malicious defense' when a defendant chooses trial rather than settlement, even if the defendant had no hope of prevailing").

14 See Hogan, "Judicial Settlement Conferences: Empowering the Parties to Decide Through Negotiation," 27 Willamette L. Rev. 429, 451, n. 102 (1991) ("Courts have cited both FRCP 16(f) and 28 U.S.C. § 1927 as authority for imposing sanctions. FRCP 16(f) provides in relevant part: '[I]f a party or party's attorney fails to participate in good faith. . . .'"). See 28 U.S.C. § 473(b)(2) recommending a rule that attorney who attends a settlement conference have authority to bind. But see, cases disapproving of sanctions for failure to participate meaningfully in settlement process.

Second Circuit: Calloway v. Marvel Entertainment Group, 854 F.2d 1452 (2d Cir. 1988), rev'd on other grounds sub nom. Pavelic and LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989); Hess v. New Jersey Transit Rail Operations, Inc., 846 F.2d 114 (2d Cir. 1988).

Third Circuit: Newton v. A.C.& S. Inc., 918 F.2d 1121 (3d Cir. 1990).

Contra:

Third Circuit: Eash v. Riggins Trucking, Inc., 757 F.2d 557, 560 (3rd Cir. 1985) ( enbanc ).

Fourth Circuit: White v. Raymark Industries, Inc., 783 F.2d 1175, 1176-1178 (4th Cir. 1986) (indicating that sanctions could legitimately follow a court finding that an attorney needlessly and vexatiously multiplied proceedings by rejecting settlement offer).

See also, Sprizzo, "Unjustifiable Refusals to Settle and Rule 68," 62 St. John 's L. Rev. 443 (1988).

The Preamble to the Model Rules of Professional Conduct (rev. 1989) states, "As a negotiator a lawyer seeks a result advantageous to the client but consistent with the requirements of honest dealings with others." See Thurman, "Chipping Away at Lawyer Veracity: The ABA 's Turn Toward Situation Ethics in Negotiations," 1990 J. Disp. Resol. 103, 104-105. The Modern Rules of Professional Conduct, Rule 8.4(c) (1987), declares that "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

See also Tenerowicz, "¿Case Dismissed' - or Is It? Sanctions for Failure to Participate in Court-Mandated ADR," 13 Ohio St. J. on Dispute Resolution 975 (1998).

15 In Rizzo v. Haines, 555 A.2d 58 ( Pa. 1989), a cause of action was stated for breach of professional conduct based on plaintiff's counsel's refusal to participate in settlement negotiations.

16 See: Bryce, "An Attorney's Duty to Exercise Ordinary Skill and Knowledge in the Conduct of Settlement Negotiations," 35 Vill. L. Rev. 435 (1990); Regelhaupt, Annotation, "Legal Malpractice in Settling or Failing to Settle Client's Case," 87 A.L.R.3d 168 (1978).

17 The Model Rules of Professional Conduct, Rules 4.2, 4.3 (rev. 1989), provide that an attorney may contact unrepresented party, but should clearly be identified as representing the other side. It is good practice to advise the unrepresented party of his right to an attorney. See Rules of Professional Conduct of the State Bar of California, Rule 2-100 and Model Rules of Professional Conduct, Rules 4.2, and DR 7-104, making it improper to directly contact a person represented by an attorney.

18 Corporations anticipating multiple claims associated with a single product will benefit from studying examples of settlement procedures used in connection with the Mansville Personal Injury Settlement Trust, the Asbestos Claims Facility, the Center for Claims Resolution, and the Shiley Compromise and Settlement Agreement, as well as the Dalkon Shield litigation. See McGovern, "Claims Resolution Facilities and the Mass Settlement of Mass Torts," 53 Law & Contemp. Probs. 1 (1990). See also: Feinberg, "The Dalkon Shield Claims Trust," 53 Law & Contemp. Probs. 79, 107 (1990) ("the de minimis payment offered under Option 1 [of the Dalkon Shield Trust] disposed of 40 percent of the claims in a few months' time. The claimants would never be able to achieve such results under the traditional tort approach."); Hensler, "Assessing Claims Resolution Facilities: What We Need to Know," 53 Law & Contemp. Probs. 175 (1990).

See also Bragg v. Owens-Corning Fiberglass Corp., 734 A.2d 643, 650 (D.C. App. 1999), outlining the history of the Manville Personal Injury Settlement Trust.

19 Hensler, "Assessing Claims Resolution Facilities: What We Need to Know," 53 Law & Contemp. Probs. 175 (1990).

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