Injury Law – Summer in the USA

Katrina McAteer tells tales of personal injury work in San Francisco.

I visited America in summer 2004 having been awarded a Pegasus Scholarship. This Scholarship gives young barristers the opportunity to travel abroad to shadow lawyers in other common law jurisdictions and the European Union.

My first two weeks were spent shadowing a Judge in the Superior court of San Francisco observing a wide range of personal injury hearings, including jury selection, conferences, ‘in limone’ motions (pre-trial applications) and a very contentious ‘toxic mould’ trial. My overall impression is of a court system, which engenders and positively encourages settlement. Prior to trial the attorneys are obliged to attend settlement conferences in which the Judge takes an extremely active role. He or she will have a private meeting in chambers with the attorneys and their clients. The aim is to explore the weaknesses, strengths and concerns of the teams and to elicit a dollar figure that may conclude the litigation.

Some say that toxic mould is the new asbestos so perhaps I have been afforded a glimpse into the future of English personal injury litigation. There are two types of toxic mould cases: personal injury cases, where a Claimant alleges that he/she has been injured by exposure to toxic mould (in residential and commercial environments) and property damage cases, where a property owner seeks the cost of repairs to his building to remove mould.

While research has linked asbestosis to exposure to asbestos there is no clear cut link between mould and injury.

Causation is the key issue in this litigation. Some types of mould, particularly those that produce myotoxins (by-products or metabolites) can lead to health problems. Symptoms present as allergies, coughs and asthma type problems.

I also had the opportunity to be involved in that great American legal tradition: taking the deposition. This is the sworn testimony of a witness taken before trial, and it is held out of court with no judge present. The witness is under oath and each party may ask questions. Proceedings are recorded. It forms part of the pre-trial discovery (fact-finding) process. The aim is not to cross-examine (which I found difficult not to do) but to lay the foundation for later impeachment.

My last few weeks were in a large Defendant firm – over four hundred attorneys in six locations. I was involved in settlement negotiations in a ten million dollar employers liability claim. Interestingly, a workers’ compensation scheme exists, a no-fault system, so injured employees need not prove that the injury was someone else’s fault in order to receive compensation benefits for an on-the-job injury. Litigation therefore focuses on whether the injury was sustained on the job or on how much in benefits an injured worker is entitled to receive.

My experiences have allowed me to analyse some of the fundamental precepts of our English personal injury practice through the lens of another jurisdiction – a fascinating opportunity.