Settlements

Settlements can occur at any stage of a claim - with an adjuster, with opposing counsel after suit, with a settlement judge, occasionally at the urging of the trial judge or very rarely at an appellate prehearing conference. The scope of this meeting will be limited to settlements with a settlement judge.

Some circuits automatically schedule settlement conferences, with others you request it. In the federal system, you request a settlement conference from your assigned (district) judge which is then scheduled before a magistrate judge. Although circuit settlements allocate as little as fifteen minutes, the federal magistrates advise you it may take all day. Regardless of your venue, never forego the settlement conference, but always be prepared.

DISCOVERY - All discovery must be concluded for the case to be in a settlement posture. Discovery educates both sides to the others strengths and weaknesses. For instance, a fair settlement offer will not be made by a defense lawyer (or authorized by an insurance adjuster) who believes a defense verdict is likely.

EXPERTS - If you have a case where an expert is needed, that expert should be on the case from day one. An expert can help you frame effective discovery, plan strategy, and generally signal the other side that you are serious. That you are spending serious money, and expect to receive serious money. Lawyers that avoid bringing on an expert until they are “forced to trial” are not using them to maximum effectiveness. For example, in a serious automobile case, an investigator can obtain statements (sometimes from the other party) and document evidence that would otherwise be lost.

RESEARCH - Solid research on issues of liability and evidentiary issues is often not undertaken until close to trial, often in response to a motion for summary judgment. With the advent of internet research, there is no excuse for not researching pertinent issues on your first client interview. A few minutes of careful research can save you hundreds of wasted hours pursuing a case with “cause of action” defects.

Let me illustrate. Just yesterday a young couple consulted with me regarding a motor vehicle tort case. The wife had been seriously injured and a partner in a “premier” Baltimore law firm who had contracted to represent both spouses, had settled her claim. The husband had not been injured but had witnessed the accident which almost crushed the life of his beloved wife. The Baltimore firm had suggested husband had a claim for negligent infliction of emotional distress.

By inserting the words “negligent infliction of emotion distress” in VersusLaw, several cases came up exactly on point; Maryland does not recognize such a cause of action. I made a copy of the most recent case and suggested that he discuss it with his attorney. (As an aside, the attorney had recommended the husband obtain a “second opinion.”)

The message here is, by doing your research sooner rather than later, you will screen out cases with a low probability of success. It makes little sense to put in hundreds of hours of time and layout costs on a file just to be booted on summary judgment, or worse to get a dismissal at the close of your case.

Regarding the settlement conference, have copies of favorable recent cases on contested points. In a recent federal settlement, I gave a copy of some research points to the magistrate who took it to the opposing side (magistrates separate the parties after initial comments). I don’t know what the magistrate said but the case was settled shortly thereafter.

REPRESENTATIVE INVOLVEMENT - Since I currently represent plaintiffs, the other side either has insurance or is self-insured. Always insist that the defense have their representative at the settlement conference. If the settlement judge/magistrate is going to “beat on” my guy, I want the insurance adjuster there too. I want the adjuster to hear by client explain how they have been affected by the injuries. I want the adjuster to look my client in the eyes. In circuit settlements, since the judges may only meet with the lawyers, introduce your client to the adjuster in the hallway; encourage a dialog. If your client can’t get the sympathy of an adjuster, one-on-one, they won’t impress a jury sitting twenty feet away.

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