Appointment of Liaison and Lead Counsel

Most courts that consolidate asbestos cases also make some provision for designation or selection of liaison counsel to coordinate pretrial matters such as encouraging joint filings and appearances among counsel for each side, scheduling depositions, and distributing notices. Some courts also make provision for lead counsel to appear as representatives of the interests of all parties similarly aligned. One court approved a committee structure to coordinate li­aison functions and discovery.

The order of the United States District Court for the Eastern District of Virginia illustrates the coverage of a pretrial order regarding organization of counsel;

(c) [C]ounsel shall confer and name one person on each side as liaison counsel for the handling of scheduling of hearings, discovery, motions, determination of issues, court appearances, interrogato­ries, depositions, briefing and arguing motions, production and ex­amination of documents, obtaining independent medical examina­tions, requests for admissions, and such other matters as may be proper.

. . . Liaison counsel have explicit responsibility to receive and distribute all notices and documents from the court or other parties.⁶²

The Eastern District of Virginia’s order also provides for designation of a lead and a backup counsel “where the interests of more than one party are the same.”⁶³Such counsel are to represent the common interests; however, designation of lead and backup counsel “shall not preclude the counsel of any party from participating to the extent necessary to represent the individual interest of his client as long as said participation does not involve unnecessary duplication,”⁶⁴ The lead counsel is given authority to speak for all parties represented; any party dissenting from the position of the lead counsel must express that dissent prior to the time designated for further action on the position.⁶⁵ The lead counsel is also responsible for conducting depositions and acting as spokesperson at all conferences and meetings, subject to the need of others to repre­sent their individual clients.

The use of liaison and lead counsel affords the court a structure for dealing with counsel for both sides on a more manageable basis, without constant repetition of argument or proof. The court is able to control “unnecessary duplication,” while allowing room for a limited amount of individual representation. Encouraging cooperation among counsel may also improve coordination of settlement ef­forts on each side.

A court can anticipate disputes about who will serve as lead or liaison counsel and who should pay for the services. The Eastern District of Virginia offers some flexibility by permitting rotation of the positions.⁶⁶ In the Middle District of North Carolina, the court recognized the organization of a steering committee to coordinate the defendants’ interests and allowed the rotation of the positions of liaison counsel and spokesperson.⁶⁷ In Massachusetts, the district court provided that “liaison counsel shall be reimbursed peri­odically, not less often than every three months, by defendants for the expense and time involved in preparation, duplication, and dis­tribution of court orders, notices, and other papers . . . and for other services rendered pursuant to the Order of the Court.”⁶⁸ The liaison counsel submits a statement of expenses to defendants for payment after it has been reviewed and approved by the court. Absent a court order, any inequities in the costs of these efforts are to be resolved among the parties.

As was noted earlier, voluntary efforts of counsel for plaintiffs and defendants to coordinate their respective positions have increased as experience with asbestos litigation has grown. Court orders recognizing those efforts and approving their structure can stimulate their further growth.

1. Bailey v. Johns-Manville, No, 76-155NN, Initial Pretrial Order at 4, 6-7 (E.D.
   Va. Aug. 25, 1977).
   1. Id. at 4.
   2. 1. Id. at 5.
      2. Id.
      3. Id.
      4. In  re Asbestos Litig.,  Order Coordinating Proceedings, MDCP-82-1, at 5-6
         (M.D.N.C. Feb. 26, 1982).
      5. In re Massachusetts Asbestos Cases, M.B.L. No. 1, Order at 2 (D. Mass. May 8,
         1979).
      6. 1. Lambros et al., supra note 45, at 30-31.
         2. Pre-Trial Schedule For Asbestos Cases, In re Baltimore Asbestos Litig., BML-1,
            2, 3, 4 (D. Md. Dec. 16, 1983). The court states that the schedule “shall be adhered to
            strictly by all parties and their counsel.” Id. at 2.
            1. In re Asbestos Litig., Order of Court, Misc. No. 8482 (W.D. Pa. July 1, 1982).
            2. Memorandum Order, In re Asbestos Litig., Misc. No. 8482 (W.D. Pa. March 29,
               1984), citing In re Japanese Elec. Prods., 723 F.2d 238, 259 (3d Cir. 1983), for its explicit approval of a final pretrial order “with preclusive effect.”