advanced civil litigation class 12slide 1 settlements - in general a settlement is an agreement by...

Advanced Civil Litigation Class 12 Slide 1

Settlements - In GeneralSettlements - In General A settlement is an agreement by both parties to A settlement is an agreement by both parties to

resolve the dispute through compromise. resolve the dispute through compromise. Assuming it’s properly executed, it is enforceable Assuming it’s properly executed, it is enforceable

like and to the same extent as any other contractlike and to the same extent as any other contract Settlements can be because you feel this is better Settlements can be because you feel this is better

than the likely result at trial or simply to save time than the likely result at trial or simply to save time and moneyand money

Role of the ParalegalRole of the Paralegal The paralegal cannot directly negotiate, but can:The paralegal cannot directly negotiate, but can:

Organize, gather and draft materials to help with the Organize, gather and draft materials to help with the negotiationsnegotiations

Ethical ConsiderationsEthical Considerations The client, not the lawyer, decides when to settleThe client, not the lawyer, decides when to settle Be careful not to reveal confidential informationBe careful not to reveal confidential information Lying or misleading the opponent is unethicalLying or misleading the opponent is unethical


Preparing to Settle 1Preparing to Settle 1

Early Investigation and Collection of InformationEarly Investigation and Collection of Information Party’s Social or Business BackgroundParty’s Social or Business Background

Determine if the client has debts that might affect a Determine if the client has debts that might affect a judgmentjudgment

Determine the client’s long and short term needsDetermine the client’s long and short term needs Party’s Medical ConditionParty’s Medical Condition

Are there likely future medical bills that can arise Are there likely future medical bills that can arise from this incident?from this incident?

Would a jury be sympathetic?Would a jury be sympathetic? Party’s Commercial ConditionParty’s Commercial Condition

Can your client afford a long trial?Can your client afford a long trial? Can the opponent afford a long trial or a big Can the opponent afford a long trial or a big

settlement>settlement> Special Areas of InvestigationSpecial Areas of Investigation

You can research past verdicts, settlements, etc.You can research past verdicts, settlements, etc.


Preparing to Settle 2Preparing to Settle 2 Communicate with Client Communicate with Client

Getting a “bottom line” from the client and get Getting a “bottom line” from the client and get general guidelines of an acceptable range of general guidelines of an acceptable range of settlement before the negotiation process starts.settlement before the negotiation process starts.

Keep the client informed of progress in the caseKeep the client informed of progress in the case Communicating with Insurance Company and Communicating with Insurance Company and

AdjusterAdjuster Find out what your client’s insurance will pay based Find out what your client’s insurance will pay based

on a homeowner’s, malpractice, or whatever, policy. on a homeowner’s, malpractice, or whatever, policy. Very often, settlements are for the maximum the Very often, settlements are for the maximum the insurance will payinsurance will pay

Calculating DamagesCalculating Damages There’s no requirement that a settlement be There’s no requirement that a settlement be

grounded in actual numbers. But, showing your grounded in actual numbers. But, showing your client’s injuries can convince the other party that a client’s injuries can convince the other party that a jury would award those amounts in any case.jury would award those amounts in any case.


Presenting the Settlement RequestPresenting the Settlement Request Settlement Précis Settlement Précis

This is a full letter or memo explaining:This is a full letter or memo explaining: Your position and why it is strong and will be strong at Your position and why it is strong and will be strong at

trialtrial Calculation of damages you think you’re entitled toCalculation of damages you think you’re entitled to Legal points in your favorLegal points in your favor What you want in exchange for settling the caseWhat you want in exchange for settling the case

Settlement Brochure Settlement Brochure This can be an even more elaborate presentation, This can be an even more elaborate presentation,

such as a video presentation, that makes your case such as a video presentation, that makes your case and convinces the other party to settleand convinces the other party to settle

Preparing a Demand PackagePreparing a Demand Package This can be part of the brochure of letterThis can be part of the brochure of letter

Calendaring the settlement coneference Calendaring the settlement coneference


Discussing a SettlementDiscussing a Settlement Role of the Defendant’s ParalegalRole of the Defendant’s Paralegal

Researching a case from this side is similar to the Researching a case from this side is similar to the plaintiff’s side. However, you’re looking here at other plaintiff’s side. However, you’re looking here at other goals as well, including:goals as well, including:

Negotiating a “no admission” clauseNegotiating a “no admission” clause Discouraging further lawsuits from similarly situated Discouraging further lawsuits from similarly situated

plaintiffsplaintiffs Public relationsPublic relations

Preparing for the Pretrial ConferencePreparing for the Pretrial Conference This is normally moderated by the judge who has a lot This is normally moderated by the judge who has a lot

of power to control the discussions, but cannot force a of power to control the discussions, but cannot force a dealdeal

Settlement ConferencesSettlement Conferences These can be held at any time by the partiesThese can be held at any time by the parties Make sure the negotiator goes in prepared with a good Make sure the negotiator goes in prepared with a good

grasp of your side’s key legal and factual argumentsgrasp of your side’s key legal and factual arguments


Settlement FormsSettlement Forms Releases Releases

This frees the parties from any further actions on This frees the parties from any further actions on the settled claim. It is a vital part of a settlement.the settled claim. It is a vital part of a settlement.

Settlement AgreementsSettlement Agreements This is a contract and it’s binding and should be This is a contract and it’s binding and should be

drafted like other contractsdrafted like other contracts Common terms in settlement agreements includeCommon terms in settlement agreements include

Settlement of Suit for Personal InjuriesSettlement of Suit for Personal Injuries Mutual Release of All Claims and DemandsMutual Release of All Claims and Demands Covenant Not to SueCovenant Not to Sue Confidentiality clausesConfidentiality clauses ““No Admission of liability”No Admission of liability”


Appraising the Court of the SettlementAppraising the Court of the Settlement Stipulation and Order for DismissalStipulation and Order for Dismissal

Types of dismissal includeTypes of dismissal include Dismissal without prejudiceDismissal without prejudice Dismissal with prejudice Dismissal with prejudice Adjudication on the meritsAdjudication on the merits

For the dismissal, you want to make sure a settled case is For the dismissal, you want to make sure a settled case is dismissed with prejudicedismissed with prejudice

These documents should be prepared and sent to the course These documents should be prepared and sent to the course with the…with the…

Consent Decree and OrderConsent Decree and Order This is what the judge signs officially accepting the This is what the judge signs officially accepting the

settlement and dismissing the casesettlement and dismissing the case In some cases (e.g., class action, case involving minors), In some cases (e.g., class action, case involving minors),

the judge may carefully examine the settlement before the judge may carefully examine the settlement before approving itapproving it

Settlement Distribution StatementSettlement Distribution Statement Should be given to client to avoid misunderstandingsShould be given to client to avoid misunderstandings


Alternative Dispute ResolutionsAlternative Dispute Resolutions MediationMediation

This is guided negotiation by a third party hired to This is guided negotiation by a third party hired to direct the negotiation, but without power to force a direct the negotiation, but without power to force a resolutionresolution

ArbitrationArbitration Both parties agree to have their cases settled by a Both parties agree to have their cases settled by a

hired third partyhired third party After an arbitration award is received, it should be After an arbitration award is received, it should be

confirmed so it can be enforced like any other confirmed so it can be enforced like any other judgmentjudgment

Early Case AssessmentEarly Case Assessment These are court-guided evaluation programs to These are court-guided evaluation programs to

facilitate settlementsfacilitate settlements Summary Jury TrialSummary Jury Trial

These allow both sides to assess the strengths of their These allow both sides to assess the strengths of their cases and facilitates settlementscases and facilitates settlements

advanced civil litigation class 12slide 1 settlements - in general a settlement is an agreement by...

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