Chapter 5 five alternative dispute civ lit 2nd

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Chapter 5 five alternative dispute civ lit 2nd

  1. 1. Civil Litigation: Process and Procedures Chapter FiveSettlement and Alternative Dispute Resolution
  2. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 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 eventCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 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 timeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 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, witnessesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 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-makerCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 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 claimCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 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 dutyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. Negotiation Documents  Settlement letters  Informal demand  Sets forth special damages  Settlement brochure  Outline of the case, facts  Damages (special & general)  Demand  Exhibits supporting claimCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 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 documentationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 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 activitiesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 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 doctrineCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 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 notCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 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 materialsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 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 maneuveringCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 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, payoutsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 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 linesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. ReleaseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 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 recordCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. Alternative Dispute Resolution  ADR includes  Negotiated settlements  Arbitration  Mediation  Neutral fact finding  Early neutral evaluation  Mini-trials  Summary jury trial  Private judgingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 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 appealCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 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 settlementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 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 agreementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  27. 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 appealCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 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 settlementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  29. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  30. 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 processCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
  31. 31. Federal Arbitration Act  Voluntary arbitration agreements in commercial contracts are  Valid  Irrevocable  EnforceableCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 31

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