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Baron & Budd then sends out a "Client Questionnaire" packet to the workers. It contains forms asking about general background, the worker's past claims and lawsuits, and his employment history--all information that will be used to build the case.
The questionnaire asks for a detailed medical accounting. Many of Baron & Budd's clients were heavy smokers, and studies have shown that the combination of tobacco and asbestos exposure may increase the risk of lung cancer as much as a hundredfold, according to trial testimony from doctors. The problem when one of these men comes down with cancer is determining which factor was the primary cause.
Finally, there is a list of miscellaneous questions, including how and when the worker first learned asbestos could be harmful to his health--critical questions, as the answers could provide a defense against the workers' suits.
The case then goes to Baron & Budd's foot soldiers, the product-identification paralegals. These mostly young women make the initial face-to-face contact with the clients. They help the clients draft work histories and show them the "picture books" from which the clients, in theory, pick out the products they recall using.
The paralegals have the primary contact with the workers, helping them prepare their answers and readying them for deposition and possible trial. ("Depo prep," as it is called at the firm, is an essential part of the process. By Baron's own estimate, about 97 percent of the cases Baron & Budd files do not go to trial, so the answers the workers give during depositions can play an important role in determining whether they get a settlement.)
Memo author Lynell Terrell is one of those paralegals.
In courts around the state, Baron has argued that the Terrell memo is ethical, though he concedes it may not have been "proper." "It's like somebody files a lawsuit against you for having an affair with your neighbor, and they file it in federal court, and you know the federal court doesn't have any jurisdiction," he says. "You're gonna file a motion to dismiss based on lack of jurisdiction. And you're gonna win, and the case is gonna be dismissed. That doesn't vindicate you from whether or not you had an affair with your neighbor...
"I'm not sitting here saying that [court decisions in his favor] absolutely vindicate that the memo was proper. OK? I've never taken that position."
Nevertheless, he insists the document cannot be evaluated properly without "context," and points to Terrell's sworn statements that she always orally instructed clients to tell the truth and that she never gave the memo to clients without also handing them a copy of a second article that admonishes them to testify truthfully.
Yet Baron also insists that he does not condone the Terrell memo. "I would never sanction any of our people using a written document like that to give to a client, because it can be misinterpreted a million ways," he says. "That's number one. So, we don't use written material when we prepare clients. Number two, there are some statements that are in there, that, if taken out of context, are awful...I think that if you literally read some of the words in there, it sounds like she is telling a witness to say something that might not be true."
That is, in fact, what the Terrell memo seems to do. Sandwiched between detailed descriptions of the packaging, appearance, and use of asbestos products are explicit instructions to Baron & Budd clients:
* "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!"
* "Remember to say you saw the NAMES on the BAGS."
* "The more often you were around it, the better for your case. You MUST prove that you breathed the fibers..."
* "Keep in mind that these [defense] attorneys are very young and WERE NOT PRESENT at the job sites 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."
* "You will be asked when you FIRST LEARNED asbestos was dangerous and HOW you found out. Most people learned about the danger when their doctor told them asbestos WAS IN THEIR LUNGS. It is important to emphasize that you had NO IDEA ASBESTOS WAS DANGEROUS when you were working around it. The defense attorneys believe that if you KNEW asbestos was dangerous and you continued to expose yourself to it without protection, then you should share the blame for being harmed by it."
* "It is important to maintain that you NEVER saw any labels on asbestos products that said 'WARNING' or 'DANGER.'"
* "Do NOT mention product names that are not listed on your Work History Sheets. The defense attorneys will jump at a chance to blame your asbestos exposure on companies that were not sued in your case."
* "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!"