Civil Litigation: Process and Procedures Chapter Eight Settlement and Alternative Dispute...
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Transcript of Civil Litigation: Process and Procedures Chapter Eight Settlement and Alternative Dispute...
Civil Litigation:Process and Procedures
Chapter EightSettlement and Alternative Dispute
Resolution
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.2
Negotiated Settlement Most cases settle prior to trial
Case is analyzed & prepared Realistic determination of value/cost
is made Documentation of claim is submitted
Informal negotiations Negotiations assisted by Alternative
Dispute Resolution (ADR)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.3
Settlements, cont. Direct costs assessed
Time preparing for & attending trial Preparation of witnesses & exhibits Court costs
Indirect costs Time it takes to get to trial Anxiety of uncertainty Strain of reliving the event
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.4
Settlement Factors Plaintiff
Uncertainty of juries Potential for surprise Judicial decisions affecting admission
of evidence Direct & indirect costs Limited defendant assets Carrying debt for long periods of time
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.5
Settlement Factors, cont. Defendants
Judges expect good faith offers Cost/benefit analysis determines it is better
to pay before incurring costs of litigation The reserve allotted for this action is more
than the demand Unusually appealing plaintiff, witnesses Unusually unsympathetic defendant,
witnesses
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.6
Negotiations Many styles, approaches
Intimidation Confidence & reasonable position Well prepared to show:
Strength of facts (witnesses, evidence) Strength of law
Eliminates the “wild card” factor of a third-party decision-maker
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.7
Damages Plaintiff determines the preliminary value of
the case Special damages, both paid & outstanding, e.g.,
Lost wages Medical bills (future treatment, rehab) Repair bills Cost of performing chores
General Damages, e.g., pain & suffering Speculative, difficult to assess Research into local awards can help prepare a
claim
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.8
Damage Defenses Causation
Injury not as bad as claimed Preexisting condition
Liability Defendant not responsible
No contract or no breach No duty or breach of duty
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.9
Negotiation Documents Settlement letters
Informal demand Sets forth special damages
Settlement brochure Outline of the case, facts Damages (special & general) Demand Exhibits supporting claim
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.10
Supporting Evidence Photographs
Before & after, during treatment Even if too prejudicial for trial Marked as exhibits & captioned
Bills & reports, other records Medical bills, reports Repair bills Employment documentation
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.11
A Day in the Life Multi-media, electronic, or print “Before” movies, still photos, videos Follow through an “After” day Documents changes in activities
Chores Work Transportation Recreational activities
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.12
Work Product Negotiations are not limited by the
rules of evidence Must make a persuasive case to
succeed Without giving away trial strategy Without violating the attorney work
product doctrine
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.13
Settlement Range Plaintiff’s (π’s) demand, usually far
above the expected recovery Defendant’s (Δ’s) offer, usually far
below the expected recovery If close at the outset, settlement
will be easier Terms are on the table, motives are
not
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.14
UPL Paralegals cannot
Make offers or demands Agree on behalf of a client Advise clients on the fairness of an offer
Paralegals can Act as a conduit of information from the
attorney to the client Safeguard confidential materials
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.15
Offers Once the range is established,
negotiations may proceed All offers should be communicated
to the client, even those outside the range
The dispute may be over specific performance, which leaves less room for maneuvering
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.16
Minors’ Settlements Generally, the court must approve a
settlement made on behalf of a minor or person under a mental disability File a petition with details of liability &
damages Identify legal fees & costs May be some oversight of investments,
payouts
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
Settlement Documents Release of claims by the plaintiff or
Mutual release of claims by both parties In writing, normally prepared by the Δ Identifies the parties, situation, and where the
matter is in terms of litigation Identifies the settlement terms & payout Withdraws or dismisses the case Confidentiality clause Signature lines
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.18
Release
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.19
Confidentiality of Settlements Agreement may contain a
confidentiality clause May condition the settlement on
confidentiality Without penalty, there is no
enforceability Private contract, and not public
record
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.20
Termination of Lawsuits Once the lawsuit is filed, the
settlement must include an end to the case, and the court must be notified Notice of dismissal (no answer filed) by π,
with no record Stipulation of dismissal (signed by all
parties) with no record Consent judgment (settlement becomes
part of the court record)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.21
Alternative Dispute Resolution ADR includes
Negotiated settlements Arbitration Mediation Neutral fact finding Early neutral evaluation Mini-trials Summary jury trial Private judging
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.22
ADR Characteristics Generally less costly Generally faster Can remain private, rather than
public Covered by confidentiality Relaxed rules of procedure,
discovery, evidence Limited right of appeal
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.23
Binding Decision or Promoting Settlement Some types of ADR end with a
binding decision that the parties have agreed to abide by (voluntary arbitration, private judging)
Some types inform the parties of the value of their case, encouraging settlement (mediation, Early Neutral Evaluation, Summary Jury Trial)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.24
General Characteristics ADR participants can generally
Resolve disputes in a confidential setting
Follow their own procedural rules and timeline
Select the presiding official or “neutral” Lower costs of the dispute Maintain on-going relationships (non-
adversarial, in many cases)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.25
Negative Indicators Sympathetic clients or witnesses
argue for a jury Witness credibility question Public resolution (precedent) may
discourage subsequent suits Wish to preserve the right to appeal No viable possibility of settlement
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.26
Mediation Non-binding, structured negotiations Led by a mediator, or facilitator, who will
“broker” the procedure Generally voluntary, although can be –
court-ordered Mediator levels the playing field between
stronger & weaker parties The mediator does not render a decision,
but helps the parties arrive at a mutual agreement
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.27
Voluntary Arbitration Binding (voluntary) Parties agree to rules of discovery,
procedure & evidence Arbitrator(s) render a decision
(award) that can be converted into a judgment
Limited grounds for appeal
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.28
Court-Annexed Arbitration Usually during or following
discovery in a case set for trial Arbitrator(s) render an advisory
judgment, which the parties can accept or reject
Helps the parties evaluate their cases & promotes settlement
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.29
Other ADR Methods Binding or non-binding Neutral Fact Finding may
settle a single issue Early Neutral Evaluation assists parties in settling
by evaluating a written description of the matter Mini-trials are non-binding proceedings conducted
in front of the decision-makers in the matter Summary jury trial is non-binding, conducted in
front of a mock jury Private judging may be permitted in some states,
with a temporary judge hired by the parties to render a binding decision, appealable (with a record)
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.30
Private ADR Private organizations can help
parties arrange for a variety of ADR methods
They can provide (for a fee) Rules Facilities Lists of decision-makers or neutrals Forms & templates for the process
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.31
Federal Arbitration Act Voluntary arbitration agreements
in commercial contracts are Valid Irrevocable Enforceable