|Because of the ever-increasing cost yet uncertain outcome of litigation, more plaintiffs, defendants and insurance carriers are interested in fully exploring and exhausting the possibility of settlement before they spend the money to prepare for and submit to the uncertainty of a trial.
This not only reflects their economic interests but their legal obligation to protect their clients, (be they Plaintiffs or Defendants) from an adverse result and excess exposure (which can lead to a potential malpractice claim) if the results are other than what counsel has led them to expect. Even if settlement is not possible, following these strategies can help insure that discovery is complete and that both sides are fully prepared to litigate all issues to be raised at trial.
TSI: Tort Scene Investigation
This means securing copies of any tapes from red-light, traffic or security cameras and conducting a TSI (Tort Scene Investigation). Gathering this information to help your case will ultimately help you settle the case. It is important to investigate all witnesses, conditions and events when they are more readily available shortly after an accident.
Building Your Claims or Defenses
When the lawsuit is commenced, properly frame the pleadings along with Answers, affirmative defenses and counterclaims. Going beyond the boilerplate and properly tailoring and expanding your pleadings will help to facilitate settlement. Similarly, drafting discovery notices to request specific information applicable to the claims and demanding specifically appropriate Bills of Particulars for all claims and affirmative defenses is also important. Once demands have been made and responses received, it is important to review them to ensure that you have received sufficient appropriate discovery responses or seek the intervention of the Court to compel same.
When You Go to Court
At each stage of the litigation, including a routine Court conference, when important issues may arise and need to be discussed with the Court, it is very important to be prepared for and at least understand the discovery, factual and legal issues. She notes that it is also extremely important to be courteous and civil and if you expect to be late, to coordinate with your adversary the time you actually expect to arrive at the courthouse. This helps preserve good will and create a better atmosphere for later settlement discussions.
Judge Sher also advises attorneys that she and many other Judges are willing to hold a conference or have an intelligent discussion of discovery or settlement issues to try and resolve same by conference call or in person. At various stages of the case, she suggests that defense attorneys speak with the handling adjuster to clearly ascertain the monetary authority, and to make sure they have all of the information necessary so that they can effectively evaluate the claim to protect themselves, prevent adverse exposure, and protect the interests of their insured.
It is Better to Give Than to Receive
You should not assume that your adversaries have the same information available, so provide it to them and their principals. Give it to them earlier rather than later so they are aware of it as they evaluate the case, decide potential exposure and reserve settlement authority.
If you are aware of facts or issues they may attempt to use to counter your claims, and you can overcome them, it is usually more productive to educate them earlier especially if it will help you encourage a settlement or prevail at trial. This can include favorable facts or notice or eyewitness information or evidence proving liability, disability or damages or demonstrating aggravation of a prior injury.
Justify the Numbers
Of course liability and other factors need to be considered in arriving at a “settlement range.” You must use the facts and prior cases and the numbers to justify your settlement demands and offers rather than merely tossing out numbers. At some point in litigation, the Court may also be willing to provide an opinion of potential value of the case.
ADR Means All Disputes Resolved
Under certain circumstances, binding arbitration is agreed to by the parties, sometimes with high/low parameters. ADR resolves the dispute, provides some certainty to the parties, in many cases provides a minimum recovery, and limits the risk or exposure of the defendant or insurance carrier. In short, this is a win-win resolution all parties can live with and protects them from a worst case scenario. ADR also reduces the expense of a trial for both sides.
In summary, as you litigate your tort cases you can use these ideas to increase the possibility of settlement. If despite your best efforts the case cannot settle, these strategies will also help you to maximize your success at trial whether you are the plaintiff, defendant or insurance carrier.
|Kenneth J. Landau is a partner in the Mineola law firm of Shayne, Dachs, Sauer & Dachs, LLP concentrating in the representation of plaintiffs in the areas of negligence, and insurance law. He is a past Dean of the Nassau Academy of Law and hosts the weekly radio show, “Law You Should Know,” broadcast every Monday at 4:00 p.m., Tuesday at 1:00 p.m. and Sunday at 7:00 a.m. on WHPC 90.3 F.M. with a live voicestream at http://www.ncc.edu/studentlife/whpcradiostation/default.shtml|
| 1. See CPLR 4545(a). Further, the above example is merely illustrative and does not include exceptions to these sources. Moreover, the example is not meant to exhaust every circumstance in which a collateral source will or can arise. Finally, it does not include circumstances where these sources may have a statutory right of reimbursement of which plaintiff may seek recovery.
2. See CPLR 4545(b). Subsection (b) of CPLR 4545 was formerly subsection (d) when it first became effective on December 9, 2002. It was later re-lettered subsection (b) effective November 12, 2009.
3. CPLR 4545(b).
4. 130 Siegel’s Practice Review, New Law: Defendant Is Not Entitled To A Credit For “Voluntary Charitable Contributions” Received By Injured Persons at 2 [Dec. 2002].
5. See Senate Memorandum in Support, 2002 NY Laws p. 2129.
7. Id. at 2129–30.
8. Id. at 2130.
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