Civil appeals are difficult, and very rarely successful, especially in asbestos cases. Usually, appeals courts uphold lower court judgements unless that judge abused his\/her discretion. Basically, abusing discretion means going off the rails. If a baseball umpire calls a pitch at the thighs a strike, that\u2019s a bad call. If an umpire calls one of these pitches<\/a> a strike, that\u2019s an abuse of discretion.\u00a0<\/p>\n\n\n\n The high failure rate doesn\u2019t stop asbestos companies from using, or rather abusing, this process. Sometimes, if defendants delay the outcome, even if that outcome is inevitable, victims give up and settle their claims for pennies on the dollar.<\/p>\n\n\n\n Workers\u2019 compensation and VA disability appeals, which are also outlined below, are different, at least at the first appeal level. An Administrative Law Judge holds a de novo hearing<\/a>. The ALJ disregards the Claims Examiner\u2019s conclusions and makes his\/her own conclusions. <\/p>\n\n\n\n In both cases, the goal of an appeal is the same, which is to secure maximum compensation for mesothelioma<\/a> and other serious asbestos-related injuries. In a civil case, this compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available as well. Different damage rules apply in workers\u2019 compensation and VA disability cases.<\/p>\n\n\n\n Usually, if an asbestos exposure injury was work or service-related, workers\u2019 compensation and VA disability are the exclusive available remedies. However, in most states, these victims can also file civil claims, in some situations.<\/p>\n\n\n\n Before we discuss the nuts and bolts of ALJ hearings in workers\u2019 compensation and VA disability cases, we should point out that most of these cases settle<\/a> before the hearing, mostly because of what happens during discovery<\/a>. <\/p>\n\n\n\n Usually, a third-party mediator oversees settlement negotiations. Mediators ensure that neither side makes a low-ball or \u201cmy way or the highway\u201d offer. When both sides work hard to reach an agreement, that\u2019s usually what happens.<\/p>\n\n\n\n Discovery, which is an information exchange process, puts both sides in a talking mood. Player A cannot bluff when Player B knows what\u2019s in his\/her hand. Instead, everyone must play the cards they\u2019re dealt.<\/p>\n\n\n\n Legally, an asbestos exposure lawyer must prove that the injury was work or service-related. Furthermore, an attorney must prove that the damages, mostly medical bills, were reasonable.<\/strong><\/p>\n\n\n\n Logistically, an ALJ appeal is like a trial without a jury. The ALJ is the legal referee as well as the factfinder. At the hearing, attorneys introduce evidence, challenge evidence, and make legal arguments. These full hearings are much different from the paper reviews that preceded them. Therefore, these hearings require extensive preparation<\/a>.<\/p>\n\n\n\n There\u2019s a major fly in the ointment. Usually, the ALJ is a government employee or contractor. Most ALJs remain independent in these environments, but that independence has limits.<\/p>\n\n\n\n As insurance company interests become more entrenched at the ALJ level, a federal court VA disability or workers\u2019 compensation appeal has gone from a Hail Mary pass to part of the process.<\/p>\n\n\n\n Federal appeals court judges have lifetime appointments and are therefore completely independent. Federal appeals courts usually have more resources, and are therefore more thorough, than ALJs. An ALJ might have an assistant or two. A federal appeals court judge has resources like a large court staff and one or more judicial clerks.<\/p>\n\n\n\n Now for the bad news. Federal appeals courts use the aforementioned abuse of discretion standard. Unless the ALJ made a major error, an appeals court is unlikely to overturn that decision. <\/p>\n\n\n\n Furthermore, procedure in federal appeals courts is extremely formal. For example, when we write briefs for a federal appeal, we often spend almost as much time formatting the document as we spend researching and writing it.<\/p>\n\n\n\n Some environmental exposure victims bypass the civil system altogether. They file claims with a victim compensation fund. This process involves lots of negotiation, but little or no litigation.<\/p>\n\n\n\n However, most asbestos exposure victims go through the system. Victims are on offense during the above-discussed ALJ appeals. But victims are usually on defense during civil court appeals. They must prove the trial judge didn\u2019t abuse his\/her discretion.<\/p>\n\n\n\n Generally, the losing party in a trial court is entitled to one free appeal in a circuit court. The U.S. appeals court system is divided into eleven circuits. The Fifth Circuit covers Texas, Louisiana, and Mississippi.<\/p>\n\n\n\n If the trial court sided with the victim, on appeal, the victim doesn\u2019t have to prove the exposure case<\/a> all over again. Instead, s\/he must prove the judge didn\u2019t abuse his\/her discretion. Examples of an abuse of discretion include:<\/p>\n\n\n\n Additionally, in most cases, the appealing party must prove the mistake affected the outcome. For example, if a confessed child rapist\u2019s lawyer was inept, the attorney\u2019s mistakes probably didn\u2019t affect the trial\u2019s outcome.<\/p>\n\n\n\n One further additional note about settlements. Usually, settlements are final and unappealable. For instance, if a victim\u2019s settlement didn\u2019t properly account for all future losses, such as future medical bills, the victim is usually financially responsible for these charges.<\/p>\n\n\n\n Unlike circuit court judges, the Supremes can pick and choose the cases they want to hear. Currently, the Court only agrees to hear about 5 percent<\/a> of appeals filed.<\/p>\n\n\n\n Back in the 1980s and 1990s, asbestos exposure and asbestos regulation were hot button issues. Today, the environment is much different. Nowadays, the Supreme Court might be interested in a headline-grabbing asbestos air quality regulation case. But the Justices rarely agree to hear asbestos exposure matters or any other personal injury appeals.<\/p>\n\n\n\nWorkers\u2019 Compensation and VA Disability Appeals<\/h2>\n\n\n\n
ALJ Appeals<\/h3>\n\n\n\n
Federal Court Appeals<\/h3>\n\n\n\n
Civil Appeals<\/h2>\n\n\n\n
Circuit Court<\/h3>\n\n\n\n
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Supreme Court<\/h3>\n\n\n\n