How to Find a Lawyer to Make Your Case
(from August 1986 Pesticides and You)
This page is designed to assist you should you need legal counsel regarding your pesticide incident. Find out more in the Questions and Answers section or learn an attorney's perspective. Check out an article on "Getting the Pesticide Law Enforced" (Adobe PDF Document).
Questions and Answers
What
kinds of legal strategies have been successful in litigating pesticide
exposure damage?
Successful
suits have alleged failure to warn, property damage, misapplication, negligence,
consumer fraud, product liability, punitive damages, and fear of future
of future harm.
What kinds of
background information must be compiled for successful litigation?
Successful
litigating requires a compilation of pesticide-specific information on
medical and scientific issues (chemistry of the chemical, human symptomology,
and animal/cell toxicology), litigation (case summaries and factual, expert
and legal materials), and government regulatory activity (regulatory chronology,
government publications, and public testimony).
Whom do you
sue?
This
depends on the situation. In some cases, it may be the applicator; in
others, the manufacturer; in yet others, the regulatory agency which may
have used the product. Often it is a combined suit against a number of
different parties potentially responsible for the exposure.
Can you publicly
disclose the issues behind the case?
Any
materials filed with the court become public record and thus copies can
be sent to any interested parties, unless disallowed by the judge. You
should urge that all such material be shared with others and that your
lawyer resist unwarranted attempts to impose protective orders which make
documents secret.
What should
I expect to pay?
You
should always thoroughly discuss the payment issue with your attorney
before the suit is begun. Lawyers can be paid either hourly rates or on
a contingency basis, in which case the lawyer generally receives 1/3 or
more of your award or settlement and/or attorney's fees from the defendant.
Comments from an Attorney
(Bill Craven, attorney and Sierra Club lobbyist)
1. I think that getting the state agency out for an inspection should be emphasized more, and earlier, in the piece.
2. I have my own bias against that sentence about attorneys getting paid off by pesticide companies. For those of us who have worked on these cases as uphill battles and didn't get high settlements (because of bad state laws--more on that in a minute), I think we'd appreciate a re-working of that sentence. By the way, is there really evidence of that, or is that sour grapes because of low settlements?
3. I think when you get into the damages issue--what you have to prove--that you should emphasize this is a partial list of factors that might vary from state to state.
4. The big issue in these cases is damages, and in particular, how states measure damages. The real reason cases settle for such small amounts is that the law does not highly value things that victims highly value. Like shade trees, ornamental plants and flowers, vegetable gardens, bees, etc. And in most states, even when you get into the value of something, you only get the value of the parcel before the spraying compared to the value of the parcel after the spraying. Again, that excludes most victims' favorite shade trees. This is an area that does require some individualized legal research for each case, as much as that is unpopular among victims. I did quite a bit of research on this, and state laws vary widely. Some states have strict liability, others have cases that alter the "measure of damages" in ways that support the claims of victims, and still others have occasional precedents (if not an entire set of rules), that support the claims of victims.
5. So, I guess my advice is to find a friendly lawyer who is willing to spend about 4-5 hours doing some specialized research on the issues of how to measure and assess damages from pesticide overspray. If there is a way to centralize that research into brief banks, or some sort of clearinghouse, then so much the better.