Settlement Conferences and Trials of Civil Lawsuits
Last month we spoke about the possibility of a civil lawsuit being filed against a law enforcement officer and what may occur during the first several months or years while the attorneys build their case. This article aims to help you understand what happens when all of the procedural maneuvering and discovery are completed and both sides tell the judge, “Ready for trial, your Honor.”
In all likelihood, your attorney will insist on a pretrial settlement conference. Preferably this will take place in the courthouse, with the judge present. This will be an opportunity for all parties of interest and others who may help the process to come together. This list should include but not be limited to:
⦁ Attorneys from all sides, including those that represent hospitals, insurance companies and other third parties seeking reimbursement that they claim resulted from the injury that allegedly occurred to the plaintiff.
⦁ The plaintiff, with his family and anyone from whom he seeks advice and guidance. This could include a family member with special skills such as an accountant, physician, or attorney.
⦁ Representatives of other parties of interest, which could include hospitals, physicians, insurance companies, Medicare or others who have filed a subrogation interest in the proceeds of any settlement or award.
⦁ You, the defendant, and anyone from whom you may seek advice. Like the plaintiff, you may trust the judgment of a friend, colleague or professionals you deal with from time to time. If punitive damages were sought and were not dismissed during the motion stage of the lawsuit, bring your spouse with you. You may need to discuss reaching into your jointly held assets to pay a settlement that may be reached on the issues seeking punitive damages.
Each judge has his own style, manner or method when conducting a pre-trial settlement conference. Some start with everyone in one room and the judge allows attorneys from each side to “tell their side of the story”. The judge may ask if there have been any negotiations between the parties before this conference. What was demanded by the plaintiff and what the defendant offered is, at this time, told to everyone. Listen carefully to what is being said and take notes so that you can ask questions of your attorney when you have a private moment with her.
Sometimes, at this point, the plaintiff and the defendant, with their respective attorneys, friends, and others, will part. Sometimes the judge keeps everyone together. Which ever happens to you, the next step will be a more in depth discussion, with each side stating the facts that will be emphasized to support each position and therefore, your demand or offer. The judge may or may not become involved by forecasting what he will allow to be said or produced during the trial. This could shift either attorney’s belief as to the outcome of the trial.
As a result, demands and offers shift. Usually they come closer to one another. Ultimately the goal is to find a common number to which all parties can agree. At this point the judge places a timeline on the attorneys to draft and sign a release that ends the litigation. The release should name all of the parties, the consideration each side is willing to give for the conclusion of the litigation and the date the case will be dismissed.
Read this document carefully. Make sure that it covers everything that was alleged against you in the complaint. Also, make sure that all parties of interest (remember the hospitals, physicians, insurance companies and Medicare) also sign off and end their claims to any recovery. It is a good idea to sit down with your attorney and review the complaint and release together. This increases the chance that all matters are addressed properly and no future problems can arise. You can never be too careful at this stage.
If the pre-trial settlement conference is not successful, the judge will set a date for trial. Often this prompts the parties to get serious about demands and offers to settle. Many cases that don’t settle in front of the judge at the pre-trial conference, settle soon after with a minor adjustment to the demand or offer of the parties. As with the case that settles during the pre-trial conference, releases will be drafted and executed. Again, as stated earlier, be diligent in reviewing the terms and conditions of the release. Go over it, point by point, to make sure everything is covered. Do this with your attorney. It is like correcting your teenager’s algebra home work. You may not fully understand it, but you do recognize when something has not been done or the answer is incomplete. Remember, this is a lawsuit against you; you need to take responsibility that your attorney gets it right.
If the case goes to trial, you already have a good understanding of what is going to happen. The pre-trial settlement conference telegraphed what the plaintiff is going to say and what your attorney will do to defend against those allegations. Always remember to follow your attorney’s advice. Be prompt, respectful of everyone in the court and dress accordingly. You may know court personnel from your criminal trial experience. While it is permissible to say hello, avoid long conversations and especially joking. Juries may observe or hear this behavior and take a dislike to it.
Should you testify, the same advice given for the deposition applies. Tell the truth and don’t embellish. Also, only answer the questions asked. Pause after each question asked by plaintiff’s attorney. This will give your attorney time to object to the question, if appropriate. Do not offer anything beyond a response to the question asked. If you are unsure about what the question is, ask the attorney to clarify. If your attorney objects to the question, wait for the judge’s ruling, and if the judge sustains the objection, you do not have to answer. Resist the temptation to answer the question anyway. When the trial is over the jury will begin deliberations and the verdict will be rendered in due course. Your thoughtful and thorough preparation should reward you with a successful outcome. In future articles, I will be discussing what you can expect after the verdict.