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Settle and Sue Again: Strategies and Snares

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Presented to the ABA Spring 2013 National Legal Malpractice Conference, "Settle and Sue Again: Strategies and Snares" had the following Program Description:

From openly disgruntled ex-clients to current clients regretting the deals they made, second-guessed settlements spawn plenty of claims that another lawyer could have achieved a better outcome supported by supposed experts and successor counsel. Learn the common types of settle-and-sue claims, plaintiffs’ tactics, and what you can do to successfully defend against them—as well as not-so-obvious opportunities and arguments that have successfully protected lawyers from such claims.

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Settle and Sue Again: Strategies and Snares

  1. 1. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGrooteSettle and Sue Again:Strategies and SnaresApr 25, 2013Spring 2013 National Legal Malpractice ConferenceCynthia Fitzgerald • Carol Payne • John DeGrooteNew Orleans
  2. 2. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 2Introduction• Today’sRoadmap• Where Do TheyCome From?• Can They BePrevented orMinimized?• What Should You DoWhen ProblemsArise?• How Do You Defendthe “Settle and Sue”Lawsuit?CLICK HERE FOR THECOURSE PAPER
  3. 3. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 3Where Do “Settle and Sue” Lawsuits Come From?• Client Regret• Settlers Remorse• Emotionally Charged Cases• Overpromises and Underdeliveries• Incompetent or UnpreparedLawyer• Case Complexity• Outgunned and Outnumbered• Negative Court Order• Clients Who Didn’t Understandor Agree• Difficult Clients• Coercive Lawyers/Overbearing Mediators• Settlement Speed• Lack of Communication
  4. 4. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 4Where Do “Settle and Sue” Lawsuits Come From?CONTINUED• Post-Negotiation Events• Taxability• Collection/Enforcement Efforts• Attorneys’ Fees• Scope of Release• Trial Result• Lawyer as Target• New Litigation Counsel• Transactional Counsel’s WorkProduct at Issue
  5. 5. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGrooteWays to Prevent – or Minimize – Them5• Prepare Your Client• Explain the Process– The Mediator– Logistics– Release Forms• Explain Your Case• Understand Your Client’s…– Settlement Range– Must Haves
  6. 6. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 6Ways to Prevent – or Minimize – ThemCONTINUED• Prepare Your Case• Written Materials• The Unexpected• Prepare for WhatHappens Next• Taxes• Fees• Collection/EnforcementEfforts
  7. 7. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 7What to Do When Problems Arise?• Document as You Go• Notify Your Carrier• Let New Counsel TakeOver• Allow for a SecondOpinion• Consider Using SpecialSettlement Counsel
  8. 8. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 8Defending the “Settle and Sue” Lawsuit• Know the Law• Know Whether Rule 408Can Help• Causation AnalysisDrives Results• Litigation Malpractice• Transactional Malpractice• Can Expert Testimony Fillthe Gaps?• Judicial Estoppel CanBar a Claim
  9. 9. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote
  10. 10. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 10Questions

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