Everything You Need to Know About Settlement Negotiations Kirk Willis, Partner September 13, 2005.
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Transcript of Everything You Need to Know About Settlement Negotiations Kirk Willis, Partner September 13, 2005.
![Page 1: Everything You Need to Know About Settlement Negotiations Kirk Willis, Partner September 13, 2005.](https://reader036.fdocuments.in/reader036/viewer/2022081603/56649e795503460f94b7952e/html5/thumbnails/1.jpg)
Everything You Need to Know About Settlement Negotiations
Kirk Willis, Partner
September 13, 2005
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Start With The End in Mind
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Settlement
Goes hand in hand with trial
Must set the case up for trial
Be aggressive about the set-up
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Keys to Successful SettlementThorough trial preparation
Client/Insured Interview
Impression to the other side that the case is ready for defense
Attention to detail is key to this impression
Minimize surprises
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Settlement
Know the social value of your case
Don’t underestimate the human factor
Be honest but stern
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Settlement v. Expenses
Key Expenses
Uncertainty
–Records– Deposition (Attorney, Court Reporter
& Videographer)
–Experts
–Mediation
–Trial [Attorney, Court, Expert, Exhibits Guy]
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Settlement
Evaluation of settlement possibilities
Background of parties
Witnesses
Circumstances of accident
Damages (Do they get worse?)
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Settlement
Don’t be afraid to “Throw in your Policy”
1) Bad Facts +
2) Big Damages
=
Policy Settlement
Who goes first?
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Settlement
Head injuries [Brain damage]
When is the right time to settle?
Children unresolved problems [Stuff happens]
Elderly [Non-symptomatic arthritis]
(No Clear Rule)
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Settlement
Tort Reform 2003
Shifting:
Purpose–Penalizes those who reject reasonable offers
–Rewards those making reasonable offers
1) Litigation Cost
3) Attorney fees
2) Court cost
4) Two expert fees
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House Bill 4
All lawsuits filed on or after January 1, 2004
[Declaratory, Injunctive other Equities]
Monetary relief only
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Claims Excluded
Class Action
Shareholder derivative
Action against Government
Action under Family Code
Workers CompJustice of the Peace
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Reasonable Settlement TriggeredStatute says anyone can claim reasonable settlement
Counter ClaimOr
Cross Action
Not triggered until Defendant’s DeclarationUnder this statute, Plaintiff can be
Defendant if:
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Reasonable Settlement Triggered
Multiple Defendants?
[Good cause can change]
–Each Defendant must file separate Declarations
–The Declaration must be made no later than 45 days before the case is set for trial
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Reasonable Settlement Triggered
Rule does not apply to:1. “Any offers made during mediation /
arbitration”
2. “Any offers not following Rules don’t trigger fee-shift”
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Reasonable Settlement Triggered Requirements
Tex. Civ. Prac. & Rem. Code § 42.003; Tex. R. Civ. P. 167.2(b)
1) Writing;
2) Made under Rule 167 and Chapter 42 Texas Practice Code;
3) Identify parties making offer and parties offer made;
4) State terms all monetary claims, attorney fees, cost and interest – may settle;
5) State a deadline – must give at least 14 days
6) Be served on all parties to which offer is made
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Reasonable Settlement Triggered
Conditions
No Shifting!
1) They may have reasonable conditions
2) Condition Rejected??
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Time LimitsTo qualify, an offer may not be made
1) Before a defendant’s declaration is filed;
Rationale
2) Within 60 days of the appearance in case;
3) Within 14 days of trial; [offer can within 7 days in response to other] Within 14 days of trial; [offer can within 7 days in response to other]
A. Can’t join and make immediate offer
B. Not on courthouse steps
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Time Limits
Successive offers Yes, as long as favorable
Withdrawal Yes, in writing
Acceptance Yes, in writing
[must be filed with request to
enforce same to the Court]
Rejection Be careful…
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Time Limits
Rejection – Offer made. If offeree does nothing,that triggers the shifting of fees.
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Time Limits
“Litigation Cost”
Triggered when the Judgment is significantly less favorable to Rejecting Party.
Plaintiff – His award is less than 80% of the rejected offer
Defendant – The Plaintiff’s award is more than 120% of the rejected offer.
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Accident + Injury = Negligence
Plaintiff damages $10,000
Fee Shift
Plaintiff Offers $20,000Defendant rejects offerJury Award $25,000
1) Attorney Fees
2) Cost of Court
3) 2 Experts
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Accident + Injury = Negligence
Plaintiff damages $10,000
Fee Shift
Plaintiff Offers $20,000Defendant rejects offerJury Award $15,000
1) Attorney Fees
2) Cost of Court
3) 2 Experts
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Accident + Injury = NegligenceQuestions
What constitutes judgment?
–Interest
–Modification
–Take Nothing Judgment
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Litigation Cost
Court Cost
Fee for two experts
–Testifying experts
Reasonable attorney fees
All fees are limited to the time the offer was rejected to judgment
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Limited Amount
1) Cost cannot exceeda) Non-economic
b) Additional damages
c) ½ of economic damages
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Limited Recovery
Defendant can only receive litigation cost as a set off against Plaintiff’s judgment.
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Discovery on Reasonable Fees
1) Yes one may, but one will pay
2) If the court determines Reasonable, then Plaintiff will pay that cost of discovery
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Settlement Consider every element of your case
–Pre-impact terror
–Instant of crash
–Injured without assistance
–Period of peril
–Mental anguish
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Settlement
Other factors–Emergency care
–Actual relief
–Transport to hospital
–Major v. minor injuries
–Therapy and treatment
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Everything You Need to Know About Settlement Negotiations
Kirk Willis, Partner469-893-3577
September 13, 2005