Litigation and Procedure Settlement and Other Alternative Dispute Resolutions

1. Litigation and Procedure Settlement and Other Alternative Dispute Resolutions

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

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

5. Preparing for SettlementEarly Investigation and Collection of Information • 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 SettlementEarly Investigation and Collection of Information(cont’d) • 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 SettlementEarly Investigation and Collection of Information(cont’d) • 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 SettlementEarly Investigation and Collection of Information(cont’d) • 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 SettlementCalculation 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)

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.

11. Presenting the Settlement RequestSettlement Precis or Letter Outline • Introduction • Social history • Medical history • Facts of Event • Theories of Recovery • Medical • Expenses • Analysis of Evaluation (Note Exhibit 10:2)

12. Presenting the Settlement RequestSettlement Brochure Outline Cover Sheet Contents: • Description of Accident • Personal History of Plaintiff • Medical History of Plaintiff • Medical Expenses • Effects of Injuries • 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.

14. Rules Governing Pretrial Conferences (Note text of FRCP on Page 121)

15. Preparing for Pretrial ConferenceChecklist • Docket conference date. • Inform client. • Determine rules of jurisdiction and expectations of trial judge. • Ensure client has signed authorizations for attorney to enter into stipulations and to settle the case. (Note Exhibit 10:4) • 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 ConferenceChecklist (cont’d) Gather and organize all documents needed for submittal to opponent for stipulations. Gather all needed records, bills, documents, and evidence needed to support claim. Gather and organize all motions to be made or pending. Gather and organize any briefs, memoranda, summaries of law, or points of contention. 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)

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.

19. Orders for DismissalForms • Stipulation and Order for Dismissal • Does not make public the terms of the settlement. (Note Exhibit 10:9) • 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

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.

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.

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: 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. ADRRole of the Paralegal • 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. • Work with witnesses, research for choice of arbitrator or mediator, research and draft summaries of evidence.

25. Settlement andOther Alternative Dispute Resolutions Questions?