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.

1. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote
Settle and Sue Again:
Strategies and Snares
Apr 25, 2013
Spring 2013 National Legal Malpractice Conference
Cynthia Fitzgerald • Carol Payne • John DeGroote
New Orleans

2. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 2
Introduction
• Today’s
Roadmap
• Where Do They
Come From?
• Can They Be
Prevented or
Minimized?
• What Should You Do
When Problems
Arise?
• How Do You Defend
the “Settle and Sue”
Lawsuit?
CLICK HERE FOR THE
COURSE PAPER

3. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 3
Where Do “Settle and Sue” Lawsuits Come From?
• Client Regret
• Settler's Remorse
• Emotionally Charged Cases
• Overpromises and Underdeliveries
• Incompetent or Unprepared
Lawyer
• Case Complexity
• Outgunned and Outnumbered
• Negative Court Order
• Clients Who Didn’t Understand
or Agree
• Difficult Clients
• Coercive Lawyers/Overbearing Mediators
• Settlement Speed
• Lack of Communication

4. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 4
Where 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 Work
Product at Issue

5. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote
Ways to Prevent – or Minimize – Them
5
• Prepare Your Client
• Explain the Process
– The Mediator
– Logistics
– Release Forms
• Explain Your Case
• Understand Your Client’s…
– Settlement Range
– Must Haves

6. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 6
Ways to Prevent – or Minimize – ThemCONTINUED
• Prepare Your Case
• Written Materials
• The Unexpected
• Prepare for What
Happens Next
• Taxes
• Fees
• Collection/Enforcement
Efforts

7. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 7
What to Do When Problems Arise?
• Document as You Go
• Notify Your Carrier
• Let New Counsel Take
Over
• Allow for a Second
Opinion
• Consider Using Special
Settlement Counsel

8. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 8
Defending the “Settle and Sue” Lawsuit
• Know the Law
• Know Whether Rule 408
Can Help
• Causation Analysis
Drives Results
• Litigation Malpractice
• Transactional Malpractice
• Can Expert Testimony Fill
the Gaps?
• Judicial Estoppel Can
Bar a Claim

9. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote

10. Copyright © 2013 Cynthia Fitzgerald • Carol Payne • John DeGroote 10
Questions