1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Settlement and Other Alternative Dispute Resolutions Litigation and Procedure Settlement and Other Alternative Dispute Resolutions

2. Settlement Introduction Key Term: Settlement The process whereby both sides review strengths and weaknesses of a case and reach a mutual agreement on how to dispose of the case. Key Term: Settlement The process whereby both sides review strengths and weaknesses of a case and reach a mutual agreement on how to dispose of the case.

3. Settlement Purpose Encouraged in our system to: Save time, trouble and expense. Save time, trouble and expense. Reduce overloading of courts. Reduce overloading of courts. End fear of the ordeal of trial. End fear of the ordeal of trial. Remove uncertainty of trial outcome. Remove uncertainty of trial outcome. Eliminate or reduce adverse publicity. Eliminate or reduce adverse publicity. Encouraged in our system to: Save time, trouble and expense. Save time, trouble and expense. Reduce overloading of courts. Reduce overloading of courts. End fear of the ordeal of trial. End fear of the ordeal of trial. Remove uncertainty of trial outcome. Remove uncertainty of trial outcome. Eliminate or reduce adverse publicity. Eliminate or reduce adverse publicity.

4. Settlement Role of the Paralegal Gather, organize and draft materials to help attorney evaluate the case and present it in negotiations. Gather, organize and draft materials to help attorney evaluate the case and present it in negotiations. Draft settlement documents. Draft settlement documents. Gather, organize and draft materials to help attorney evaluate the case and present it in negotiations. Gather, organize and draft materials to help attorney evaluate the case and present it in negotiations. Draft settlement documents. Draft settlement documents.

5. Preparing for Settlement Early Investigation and Collection of Information 1.Party’s Social or Business Background –Age, race, sex, personality, family, education, income, benefits, advancement potential, lifestyle, activities, interests before and after event. –Eligibility for government assistance. –Effectiveness of witnesses. –Comparative wealth of parties. 1.Party’s Social or Business Background –Age, race, sex, personality, family, education, income, benefits, advancement potential, lifestyle, activities, interests before and after event. –Eligibility for government assistance. –Effectiveness of witnesses. –Comparative wealth of parties.

6. Preparing for Settlement Early Investigation and Collection of Information (cont’d) 2.Party’s Medical Condition –Condition prior to event. –Details of injuries: diagnosis, post-event impediments (including emotional and psychological), causal relationship to event, treatment, pain and suffering, recovery and rehabilitation, disfiguration, prognosis, expenses (including future), effect on activities, interests, home-life. –Evidence of expenses. 2.Party’s Medical Condition –Condition prior to event. –Details of injuries: diagnosis, post-event impediments (including emotional and psychological), causal relationship to event, treatment, pain and suffering, recovery and rehabilitation, disfiguration, prognosis, expenses (including future), effect on activities, interests, home-life. –Evidence of expenses.

7. Preparing for Settlement Early Investigation and Collection of Information (cont’d) 3.Party’s Financial Condition –Value of assets. –Income before and after event. –Loss of profits and opportunities. –Causal relationship of losses to event. –Mitigation of damages. 3.Party’s Financial Condition –Value of assets. –Income before and after event. –Loss of profits and opportunities. –Causal relationship of losses to event. –Mitigation of damages.

8. Preparing for Settlement Early Investigation and Collection of Information (cont’d) 4.Special Areas of Investigation –Record of verdicts and awards in jurisdiction. –Expert witnesses (reputation, background, intelligence, and courtroom abilities). –Previous decisions of trial judge. –Opponent’s attorney (trial and negotiation abilities). –Statistics (e.g., actuarial, economic, etc.). –Costs of litigation, trial, and attorney’s fees. 4.Special Areas of Investigation –Record of verdicts and awards in jurisdiction. –Expert witnesses (reputation, background, intelligence, and courtroom abilities). –Previous decisions of trial judge. –Opponent’s attorney (trial and negotiation abilities). –Statistics (e.g., actuarial, economic, etc.). –Costs of litigation, trial, and attorney’s fees.

9. Preparing for Settlement Calculation of Damages  Special Damages –Medical Expenses –Economic Loss (Wages and Benefits, etc.) –Property (Loss/Damage to Real and Personal Property)  General Damages –Pain and Suffering –Standard –Consortium  Exemplary Damages (i.e., Punitive) (Note Exhibit 10:1)  Special Damages –Medical Expenses –Economic Loss (Wages and Benefits, etc.) –Property (Loss/Damage to Real and Personal Property)  General Damages –Pain and Suffering –Standard –Consortium  Exemplary Damages (i.e., Punitive) (Note Exhibit 10:1)

10. Presenting the Settlement Request Key Term: Settlement Precis A brief presentation of the client’s case designed to persuade the opposing party to settle the case on terms satisfactory to the client. Key Term: Settlement Precis A brief presentation of the client’s case designed to persuade the opposing party to settle the case on terms satisfactory to the client.

11. Presenting the Settlement Request Settlement Precis or Letter Outline 1.Introduction  Social history  Medical history  Facts of Event 2.Theories of Recovery 3.Medical 4.Expenses 5.Analysis of Evaluation (Note Exhibit 10:2) 1.Introduction  Social history  Medical history  Facts of Event 2.Theories of Recovery 3.Medical 4.Expenses 5.Analysis of Evaluation (Note Exhibit 10:2)

12. Presenting the Settlement Request Settlement Brochure Outline Cover Sheet Contents: I.Description of Accident II.Personal History of Plaintiff III.Medical History of Plaintiff IV.Medical Expenses V.Effects of Injuries VI.Evaluation of Claims (plus exhibits, statements, and reports) (Note Exhibit 10:2) Cover Sheet Contents: I.Description of Accident II.Personal History of Plaintiff III.Medical History of Plaintiff IV.Medical Expenses V.Effects of Injuries VI.Evaluation of Claims (plus exhibits, statements, and reports) (Note Exhibit 10:2)

13. Presenting the Settlement Request “Day in the Life” Videos  Digital videos that graphically demonstrate the injuries, treatment, progress, and likely future of the injured party.  Can include much of the Settlement Brochure including photographs, television commentary, newspaper clippings, and comments of family and friends regarding impact of injuries on the plaintiff’s life.  Digital videos that graphically demonstrate the injuries, treatment, progress, and likely future of the injured party.  Can include much of the Settlement Brochure including photographs, television commentary, newspaper clippings, and comments of family and friends regarding impact of injuries on the plaintiff’s life.

14. Rules Governing Pretrial Conferences ActPurpose When Due Rule(s) Pretrial Conferences Expediting disposition of action; establishing early and continuing judicial control; discouraging wasteful pretrial activities; improving quality of trial by thorough preparation; facilitating settlement of case. At discretion of court anytime after receipt of Parties’ Planning Meeting Report, but within 90 days after defendant’s appearance and 120 days after complaint served on defendant. FRCP 16 MRCP 16 (Note text of FRCP on Page 121)

15. Preparing for Pretrial Conference Checklist 1.Docket conference date. 2.Inform client. 3.Determine rules of jurisdiction and expectations of trial judge. 4.Ensure client has signed authorizations for attorney to enter into stipulations and to settle the case. (Note Exhibit 10:4) 5.Have available summaries of:  Facts, acts, and omissions (basis of claims).  Any pertinent statutes or ordinances.  Evidentiary documents, photos, diagrams, and tangible things.  Witnesses (names, addresses, areas of testimony – including experts).  Injuries, damages, and monetary amounts.  Points of factual and legal contention. 1.Docket conference date. 2.Inform client. 3.Determine rules of jurisdiction and expectations of trial judge. 4.Ensure client has signed authorizations for attorney to enter into stipulations and to settle the case. (Note Exhibit 10:4) 5.Have available summaries of:  Facts, acts, and omissions (basis of claims).  Any pertinent statutes or ordinances.  Evidentiary documents, photos, diagrams, and tangible things.  Witnesses (names, addresses, areas of testimony – including experts).  Injuries, damages, and monetary amounts.  Points of factual and legal contention.

16. Preparing for Pretrial Conference Checklist (cont’d) 6.Gather and organize all documents needed for submittal to opponent for stipulations. 7.Gather all needed records, bills, documents, and evidence needed to support claim. 8.Gather and organize all motions to be made or pending. 9.Gather and organize any briefs, memoranda, summaries of law, or points of contention. 10.Review preparations with attorney. 6.Gather and organize all documents needed for submittal to opponent for stipulations. 7.Gather all needed records, bills, documents, and evidence needed to support claim. 8.Gather and organize all motions to be made or pending. 9.Gather and organize any briefs, memoranda, summaries of law, or points of contention. 10.Review preparations with attorney.

17. Settlement Forms Key Term: Release A document executed by the plaintiff or claimant that frees the defendant from any further obligations or liability stemming from the incident causing the damages in return for consideration (money). (Note Exhibits 10:5, 10:6, and 10:7) Key Term: Settlement Agreement A contract between the parties setting all the terms, conditions, and obligations of the parties, including how the action will be dismissed. (Note Exhibit 10:8) Key Term: Release A document executed by the plaintiff or claimant that frees the defendant from any further obligations or liability stemming from the incident causing the damages in return for consideration (money). (Note Exhibits 10:5, 10:6, and 10:7) Key Term: Settlement Agreement A contract between the parties setting all the terms, conditions, and obligations of the parties, including how the action will be dismissed. (Note Exhibit 10:8)

18. Orders for Dismissal Key Term: Without Prejudice In the dismissal of a case, the understanding that the action may be brought again. Key Term: With Prejudice In the dismissal of a case, the understanding that the action may not be brought again. Key Term: Adjudication on the Merits A judgment by the court deciding the issues of an action, precluding that action from being brought again. Key Term: Without Prejudice In the dismissal of a case, the understanding that the action may be brought again. Key Term: With Prejudice In the dismissal of a case, the understanding that the action may not be brought again. Key Term: Adjudication on the Merits A judgment by the court deciding the issues of an action, precluding that action from being brought again.

19. Orders for Dismissal Forms Stipulation and Order for Dismissal Stipulation and Order for Dismissal – Does not make public the terms of the settlement. (Note Exhibit 10:9) Consent Decree and Order Consent Decree and Order – Includes the details of the settlement and approval by court of the terms. (Note Exhibit 10:10) Stipulation and Order for Dismissal Stipulation and Order for Dismissal – Does not make public the terms of the settlement. (Note Exhibit 10:9) Consent Decree and Order Consent Decree and Order – Includes the details of the settlement and approval by court of the terms. (Note Exhibit 10:10)

20. Rules Governing Voluntary Dismissal ActPurpose When Due Rule(s) Motion for Voluntary Dismissal So plaintiff or parties can agree to action dismissal. By notice of dismissal at any time before service by adverse party of an answer or motion for summary judgment, whichever occurs first, or by filing stipulation signed by all parties appearing in action. FRCP 41(a)(1) MRCP 41(a)(1)

21. Alternative Dispute Resolutions (ADR) Key Term: Arbitration An alternative dispute resolution process consisting of the submission of a dispute to a neutral decision maker (can be binding or non-binding). Key Term: Mediation An alternative dispute resolution process incorporating a neutral person (the mediator) who facilitates a mutual resolution of the dispute. Key Term: Arbitration An alternative dispute resolution process consisting of the submission of a dispute to a neutral decision maker (can be binding or non-binding). Key Term: Mediation An alternative dispute resolution process incorporating a neutral person (the mediator) who facilitates a mutual resolution of the dispute.

22. Alternative Dispute Resolutions (ADR) (cont’d) Key Term: Med-Arb A combination of mediation and arbitration; the matter is first mediated, then any unresolved issue is decided by the same or a different person who serves as the arbitrator. Key Term: Summary Jury Trial A nonbinding, abbreviated trial before a summary jury to see whether either side’s case merits a real trial; encourages settlement of especially large cases. Key Term: Med-Arb A combination of mediation and arbitration; the matter is first mediated, then any unresolved issue is decided by the same or a different person who serves as the arbitrator. Key Term: Summary Jury Trial A nonbinding, abbreviated trial before a summary jury to see whether either side’s case merits a real trial; encourages settlement of especially large cases.

23. Massachusetts Rules Governing ADR In Massachusetts, the following attorney’s certification is contained in the Civil Action Cover Sheet that must accompany the plaintiff’s complaint, and the same certification must be contained in the answer by the defendant’s attorney: In Massachusetts, the following attorney’s certification is contained in the Civil Action Cover Sheet that must accompany the plaintiff’s complaint, and the same certification must be contained in the answer by the defendant’s attorney: I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of the various methods. The Massachusetts Supreme Judicial Court/Trial Court Standing Committee on Dispute Resolution has prepared a booklet entitled, “A Guide to Court Connected Alternative Dispute Resolution Services”, which should be provided to the client to explain these methods. In Massachusetts, the following attorney’s certification is contained in the Civil Action Cover Sheet that must accompany the plaintiff’s complaint, and the same certification must be contained in the answer by the defendant’s attorney: In Massachusetts, the following attorney’s certification is contained in the Civil Action Cover Sheet that must accompany the plaintiff’s complaint, and the same certification must be contained in the answer by the defendant’s attorney: I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of the various methods. The Massachusetts Supreme Judicial Court/Trial Court Standing Committee on Dispute Resolution has prepared a booklet entitled, “A Guide to Court Connected Alternative Dispute Resolution Services”, which should be provided to the client to explain these methods.

24. ADR Role of the Paralegal Similar to role normally played in preparing for settlement. Similar to role normally played in preparing for settlement. Gather facts, cooperate with opponent on a form of discovery, draft and file necessary documents to initiate action and present it at hearing. Gather facts, cooperate with opponent on a form of discovery, draft and file necessary documents to initiate action and present it at hearing. Work with witnesses, research for choice of arbitrator or mediator, research and draft summaries of evidence. Work with witnesses, research for choice of arbitrator or mediator, research and draft summaries of evidence. Similar to role normally played in preparing for settlement. Similar to role normally played in preparing for settlement. Gather facts, cooperate with opponent on a form of discovery, draft and file necessary documents to initiate action and present it at hearing. Gather facts, cooperate with opponent on a form of discovery, draft and file necessary documents to initiate action and present it at hearing. Work with witnesses, research for choice of arbitrator or mediator, research and draft summaries of evidence. Work with witnesses, research for choice of arbitrator or mediator, research and draft summaries of evidence.

25. Settlement and Other Alternative Dispute Resolutions Questions?