Advanced Civil Litigation Class 12Slide 1 Settlements - In General A settlement is an agreement by both parties to resolve the dispute through compromise. A settlement is an agreement by both parties to resolve the dispute through compromise. Assuming it’s properly executed, it is enforceable like and to the same extent as any other contract Assuming it’s properly executed, it is enforceable like and to the same extent as any other contract Settlements can be because you feel this is better than the likely result at trial or simply to save time and money Settlements can be because you feel this is better than the likely result at trial or simply to save time and money Role of the Paralegal Role 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 negotiations Organize, gather and draft materials to help with the negotiations Ethical Considerations Ethical Considerations The client, not the lawyer, decides when to settle The client, not the lawyer, decides when to settle Be careful not to reveal confidential information Be careful not to reveal confidential information Lying or misleading the opponent is unethical Lying or misleading the opponent is unethical

Advanced Civil Litigation Class 12Slide 2 Preparing to Settle 1 Early Investigation and Collection of Information Party’s Social or Business Background Party’s Social or Business Background Determine if the client has debts that might affect a judgment Determine if the client has debts that might affect a judgment Determine the client’s long and short term needs Determine the client’s long and short term needs Party’s Medical Condition Party’s Medical Condition Are there likely future medical bills that can arise from this incident? Are there likely future medical bills that can arise from this incident? Would a jury be sympathetic? Would a jury be sympathetic? Party’s Commercial Condition Party’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 settlement> Can the opponent afford a long trial or a big settlement> Special Areas of Investigation Special Areas of Investigation You can research past verdicts, settlements, etc. You can research past verdicts, settlements, etc.

Advanced Civil Litigation Class 12Slide 3 Preparing to Settle 2 Communicate with Client Communicate with Client Getting a “bottom line” from the client and get general guidelines of an acceptable range of settlement before the negotiation process starts. Getting a “bottom line” from the client and get general guidelines of an acceptable range of settlement before the negotiation process starts. Keep the client informed of progress in the case Keep the client informed of progress in the case Communicating with Insurance Company and Adjuster Communicating with Insurance Company and Adjuster Find out what your client’s insurance will pay based on a homeowner’s, malpractice, or whatever, policy. Very often, settlements are for the maximum the insurance will pay Find out what your client’s insurance will pay based on a homeowner’s, malpractice, or whatever, policy. Very often, settlements are for the maximum the insurance will pay Calculating Damages Calculating Damages There’s no requirement that a settlement be grounded in actual numbers. But, showing your client’s injuries can convince the other party that a jury would award those amounts in any case. There’s no requirement that a settlement be grounded in actual numbers. But, showing your client’s injuries can convince the other party that a jury would award those amounts in any case.

Advanced Civil Litigation Class 12Slide 4 Presenting 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 trial Your position and why it is strong and will be strong at trial Calculation of damages you think you’re entitled to Calculation of damages you think you’re entitled to Legal points in your favor Legal points in your favor What you want in exchange for settling the case What you want in exchange for settling the case Settlement Brochure Settlement Brochure This can be an even more elaborate presentation, such as a video presentation, that makes your case and convinces the other party to settle This can be an even more elaborate presentation, such as a video presentation, that makes your case and convinces the other party to settle Preparing a Demand Package Preparing a Demand Package This can be part of the brochure of letter This can be part of the brochure of letter Calendaring the settlement coneference Calendaring the settlement coneference

Advanced Civil Litigation Class 12Slide 5 Discussing a Settlement Role of the Defendant’s Paralegal Role of the Defendant’s Paralegal Researching a case from this side is similar to the plaintiff’s side. However, you’re looking here at other goals as well, including: Researching a case from this side is similar to the plaintiff’s side. However, you’re looking here at other goals as well, including: Negotiating a “no admission” clause Negotiating a “no admission” clause Discouraging further lawsuits from similarly situated plaintiffs Discouraging further lawsuits from similarly situated plaintiffs Public relations Public relations Preparing for the Pretrial Conference Preparing for the Pretrial Conference This is normally moderated by the judge who has a lot of power to control the discussions, but cannot force a deal This is normally moderated by the judge who has a lot of power to control the discussions, but cannot force a deal Settlement Conferences Settlement Conferences These can be held at any time by the parties These can be held at any time by the parties Make sure the negotiator goes in prepared with a good grasp of your side’s key legal and factual arguments Make sure the negotiator goes in prepared with a good grasp of your side’s key legal and factual arguments

Advanced Civil Litigation Class 12Slide 6 Settlement Forms Releases Releases This frees the parties from any further actions on the settled claim. It is a vital part of a settlement. This frees the parties from any further actions on the settled claim. It is a vital part of a settlement. Settlement Agreements Settlement Agreements This is a contract and it’s binding and should be drafted like other contracts This is a contract and it’s binding and should be drafted like other contracts Common terms in settlement agreements include Common terms in settlement agreements include Settlement of Suit for Personal Injuries Settlement of Suit for Personal Injuries Mutual Release of All Claims and Demands Mutual Release of All Claims and Demands Covenant Not to Sue Covenant Not to Sue Confidentiality clauses Confidentiality clauses “No Admission of liability” “No Admission of liability”

Advanced Civil Litigation Class 12Slide 7 Appraising the Court of the Settlement Stipulation and Order for Dismissal Stipulation and Order for Dismissal Types of dismissal include Types of dismissal include Dismissal without prejudice Dismissal without prejudice Dismissal with prejudice Dismissal with prejudice Adjudication on the merits Adjudication on the merits For the dismissal, you want to make sure a settled case is dismissed with prejudice For the dismissal, you want to make sure a settled case is dismissed with prejudice These documents should be prepared and sent to the course with the… These documents should be prepared and sent to the course with the… Consent Decree and Order Consent Decree and Order This is what the judge signs officially accepting the settlement and dismissing the case This is what the judge signs officially accepting the settlement and dismissing the case In some cases (e.g., class action, case involving minors), the judge may carefully examine the settlement before approving it In some cases (e.g., class action, case involving minors), the judge may carefully examine the settlement before approving it Settlement Distribution Statement Settlement Distribution Statement Should be given to client to avoid misunderstandings Should be given to client to avoid misunderstandings

Advanced Civil Litigation Class 12Slide 8 Alternative Dispute Resolutions Mediation Mediation This is guided negotiation by a third party hired to direct the negotiation, but without power to force a resolution This is guided negotiation by a third party hired to direct the negotiation, but without power to force a resolution Arbitration Arbitration Both parties agree to have their cases settled by a hired third party Both parties agree to have their cases settled by a hired third party After an arbitration award is received, it should be confirmed so it can be enforced like any other judgment After an arbitration award is received, it should be confirmed so it can be enforced like any other judgment Early Case Assessment Early Case Assessment These are court-guided evaluation programs to facilitate settlements These are court-guided evaluation programs to facilitate settlements Summary Jury Trial Summary Jury Trial These allow both sides to assess the strengths of their cases and facilitates settlements These allow both sides to assess the strengths of their cases and facilitates settlements