January 9, 2016
Ahhh, the peace that comes with conflict resolution!
Whether at the end of a long and raging litigation battle or at the beginning of a minor dispute, the parties have finally entered into settlement discussions. This is going to be good, right? Well, even settlement can be fraught with risks, so let’s be sure to get that one last step right.
Here are some valuable tips about settlement discussions:
1. Oral settlements are binding, unless the parties agree that the settlement agreement must be in writing.
Many of the disputes this firm handles are subject to the Statute of Frauds (such as the purchase and sale of real estate, see here). As a result, many clients are under the misapprehension that a settlement of a dispute about that transaction is likewise subject to the Statute of Frauds (i.e., that the settlement agreement must be in writing and signed by the parties). This simply is not true. If the parties to a dispute reach resolution of the dispute orally, that settlement is binding, at least in Ohio and Kentucky.
Of course, oral agreements can be the source of misunderstanding, fraud in and of themselves (“I never agreed to that!”), being incomplete and being not well-thought-through. Thus, one should be cautious about entering into oral settlement discussions.
However, many times nothing can get a dispute resolved faster and more commodiously than letting the parties — who many times have a long business relationship — hash things out in person, and even without lawyers. I don’t want to interfere with those positive interactions, so in such circumstances, I recommend a “letter agreement” between the parties that says that the parties are going to engage in such informal conversations, but that nothing is binding on either of them unless and until they reach a final written agreement, signed by both of them. The letter agreement should further provide that a waiver of the “written agreement” requirement cannot be amended except in writing.
2. Be careful who you are releasing or from whom you are getting a release.
To get an effective release, the parties identified in a release can be more important than the release language itself. It goes without saying that a release is only binding upon the parties released and only benefits the released parties. Make sure the parties with the real claims are the ones subject to the form of release.
Further, we usually include in the releasor class and the releasee class “heirs, successors and assigns” of the parties, as well as their “employees, directors, owners, agents, and attorneys.”
Finally on this point, it is important that the releasor(s) acknowledge and represent that they have not assigned their claim in the litigation.
3. Be careful what you are releasing or what is being released.
As a general rule, when I am representing a defendant who is paying money to settle a claim, I want a full, complete and final release from the plaintiff. This is so for several reasons, the biggest one being that the plaintiff now knows the “pain threshold” that will get my client to pay money. If we leave unreleased some of the claims, we have a plaintiff who may well just come back for more. Further, by paying a plaintiff money, you just help him finance phase two of the litigation.
One exception to this general rule that I consider when representing a defendant, and insist upon when representing a plaintiff, in a dispute relating to the sale of real property, is preserving the warranty covenants that may be contained in a deed for the property. To me, these are critically important promises from a seller to a buyer, and usually unrelated to other property defects or contract claims.
Additionally, a plaintiff can release claims that do exist as of the time of the settlement, but what about releasing prospective claims? Typically, it is inappropriate, and may not be possible, to release claims that may arise in the future.
4. Clear up all ancillary claims and get the litigation dismissed.
In a matter closely related to the “what” of the release, is the issue of clearing up all ancillary disputes in conjunction with a dispute.
Many times a civil claim is attendant with criminal matters, license law complaints, mechanics liens and other impairments of title to real estate, administrative complaints and a host of other sticky issues. Now, this article is a broad-brush treatment of this issue, and some tricky ethical and other considerations may require very delicately addressing those matters, but when we have the emotional “high” of a settlement, use that Kumbaya moment to put all the bad feelings (and paperwork and proceedings) behind you.
And, of course, make sure the underlying litigation is dismissed concurrent with the settlement.
5. Something I always (almost) forget — the court costs.
So, the defendant is going to pay money and the plaintiff is going to dismiss the lawsuit, but who is going to pay the court costs of the litigation?
In many instances, the court costs are a small number, but in others they can be tens of thousands of dollars. In any event, it can be the “final insult” or the “icing on the cake” in a settlement.
And in the euphoria and rush of settlement discussions, it is many times the last thing I think of in terms of dispute resolution. So, I have to remind myself of this component of a settlement.
In my experience, insurance companies routinely pay the court costs as a part of a settlement, but where the litigants have hard feelings or the expenses are significant, it can be a sticking point to have the court costs paid as a part of a settlement. Thus, the court costs issue should be addressed at the front end of settlement discussions.
6. Get a mutual release.
Don’t kid yourself that the person writing you a check for settlement may be carefully plotting his retaliation against the plaintiff in another or perhaps even unrelated matter. “Paybacks are hell,” so they say.
When resolving the dispute for your plaintiff client, ask for a release from the defendant for any claims he may have against the plaintiff as well. Now, I have had many a defendant say: “if you want a release from me, then pay me some money,” but it is certainly worth seeking such a release.
7. Indemnities provide unlimited access to your checkbook.
Frequently, defendants paying money to plaintiffs to settle a claim want the plaintiff to indemnify, defend or “hold harmless” the defendant from claims that may be made by third parties relating to the same events that are subject to the release.
These are not “throw away” provisions or boilerplate. Rather, they provide open-ended access to a party’s checkbook. Thus, such provisions could contain the seeds of financial disaster for the plaintiff. At a minimum, these requests should be carefully considered. Occasionally, an limited indemnity of “duty to defend” provision may be appropriate, but in most circumstances, requested indemnities are major “red flags” that I reject when representing a plaintiff releasing claims.
A settlement is a fine end to a dispute, but make sure through these steps that it in fact really the end and really is fine.