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Litigation like vegetables?  Yes, it can be that way.

Think about the salad.  Onions can be peeled away one layer at a time, tomatoes you just slice through the middle.  Litigation can be proceed in both ways, for each plaintiff and defendant.

Plaintiff’s tomato

As a plaintiff’s counsel, finding a case that you can slice down the middle like a tomato — putting an end to it quickly and in an advantageous way for your client — can be gratifying.  Our firm, for example, does a significant amount of fee-shifting litigation in which when the plaintiff wins — even a small victory — the cost of attorneys fees and expenses (all of them) falls to the defendant.  In such cases, frequently the defendant wants a quick settlement to avoid open-ended liability for their wrong-doing.  Other times, the plaintiff has such a strong case, the mere demand or filing of suit will bring the defendant to the table to settle.  Finally, sometimes the power of the story in the media can convince a defendant to quick bring an end to a big battle before his misdeeds are displayed before the world.

Plaintiff’s onion

Other times, a plaintiff has to slowly and methodically convince the defendant of the strength of his position — like peeling an onion back one layer at a time.  Layer by layer, and sometimes cut by cut, the defendant realizes that the case is just going to get worse for him each day, each motion and each deposition that passes.  Eventually the defendant relents, but it can be hard work; some defendants take a lot of convincing.  “Onion” litigation is the most gratifying when the Judge is moving with the client, and motion by motion, ruling by ruling, lays open the defendant to the plaintiff’s claims.  The penultimate “onion” strategy for a plaintiff is a (occasionally surprising) motion for summary judgment, or maybe partial summary judgment on liability only that makes liability — and potentially open-ended liability — a foregone conclusion to the defendant.  That frequently is enough to wrangle a strong settlement.  Some onion cases, however, require that you take them all the way through trial and even layers of appeals.

Defendant’s tomato

From a defendant’s perspective, a quick end to litigation — slicing open the tomato — is a motion to dismiss or a motion for judgment on the pleading at the commencement of litigation.  All the plaintiff has done is file the complaint (the initial lawsuit paperwork).  In response, the defendant says “this is not worth the paper it is written on,” and successfully moves to have the entire case thrown out before the first punch is thrown.  That’s a tomato, cut right down the middle.

Defendant’s onion

Finally, we look at defendant’s onion, the slow use of motion work and discovery to peel back the layers of the plaintiff’s case down to its rotten core.  This is most typical in cases involving insurance defense.  By slow, methodical work, the defense counsel makes the plaintiff prove their case, or establishes that he does not have one. Sometimes this strategy can backfire on defense counsel, running up costs for the client — or indemnitor — only to show the strength of the plaintiff’s case and counsel.  In any event, hard, slow, committed defense work can undo what at first seem to be strong plaintiff’s cases.  Because of the cost and risk of litigation, the onion strategy typically works best for defendants, especially those with insurance carriers funding the defense or those defendants with deep pockets. Onion defenses can last through multiple interlocutory appeals and appeals all the way through the U.S. Supreme Court.

Conclusion

The moral to this story is that litigation — strategically planned and  properly pursued to its end — can be successful as either an onion or a tomato.  But onions typically are a lot more expensive.

 

The Finney Law Firm is counsel to five multi-handicapped children and their parents in a law suit against the Kings Local School District for abuse at the hands of the special needs classroom teacher.  The abuse was exposed by one of the aides.

Yesterday, our firm won two key motions in that case from Judge Michael Barrett.

The decisions are  here and here.  The Cincinnati Enquirer writes about the victory here.

In order to foster settlements, Courts have a strong bias in favor of settlement discussions and settlement agreements.  Here are two ways in which this preference is manifested:

Settlement discussions are not admissible in court proceedings.

Those not familiar with mechanisms of dispute resolution frequently conclude that because a party offers to settle a claim, he must have done something wrong — something that is the basis for legal liability.  Further, knowing the dollars a Plaintiff or Defendant put on the table to resolve a claim in failed settlement discussions places before a decision-maker (Judge, Jury or Arbitrator) important information of how the parties  value the claim.  Therefore, it would be tremendously prejudicial before a jury — or even a judge — to allow settlement discussions to come in to evidence.  As a result, there is a pretty firm rule in Court proceedings that evidence of settlement discussions — regardless of how true they are — are simply inadmissible.  Otherwise, parties would be crazy to engage in such discussions for fear of prejudicing the litigation.

Courts directly enforce settlement agreements

Second, once a settlement agreement is reached — or arguably reached — Courts will use their powers to enforce that agreement, whether oral or in writing.  [Read here about enforcement of oral settlement agreements.]  Thus, parties should carefully consider what they are willing to agree to when it comes to a settlement agreement.  Casual and not-well-thought-through agreements can bind you.

It is important that parties carefully protect themselves in situations of potential conflict, especially when undertaking settlement discussions.

 

 

This blog entry  is a first in a series on the Settlement Agreement, the document by which the terms of settlement between Plaintiff and Defendant (or prospective parties to litigation) are memorialized.

All litigation ends in either a trial, a settlement, or the Plaintiff simply walking away from his claim.

Our advice to clients on settlement agreements is to obtain from the other party a full, complete and final release of all claims, known or unknown, from the beginning of time through the execution of the settlement document.

Why?  Well, for several reasons.

1. We have had litigation that had two parts.  The Plaintiff pleaded with us to settle part #1, and allow him to proceed with part #2.  We advised the client against doing this, as it would simply have allowed the plaintiff to finance the second part of the litigation with the proceeds from the first.
2. Litigation is a bit of a game of chicken.  Neither party knows which party will flinch first.  If a Defendant writes a settlement check to resolve some of the Plaintiff’s claims, the Plaintiff then knows the Defendant’s threshold for conflict resolution, and they know that if they push just a little harder, they could get a second settlement.
3. Finally, whether by design or surprise, a party can later learn of claims that already existed as of the execution of the first settlement agreement.  By entering into a partial settlement agreement on earlier claims, it only encourages raising later-learned claims.

Now, it is always possible that claims from the Plaintiff could arise from occurrences arising entirely after the first settlement.  These later-arising claims are generally not waive able at the time of the first settlement.

In order to obtain finality in a settlement agreement, here are some  considerations:

• Be sure to get all parties who might have claims and all parties against whom claims might be made included in one settlement agreement.  This may include all heirs and assigns, and in the case of claims against corporate entities, a release of all officers, employees, directors, and agents of the corporate entity.  It is always a good idea to get a release of the attorney as well.  If the claimant is a corporate entity, are there individuals who should be included in the release as well?
• Corporate releases and releases from fiduciaries should have the proper evidence of authority to enter into the agreement.
• Be sure to include all claims, whether presently known or unknown, and whether knowable or unknowable, at that the time the settlement agreement is struck.  This also should include claims that may later arise from the conduct settled, such as a death arising from what is at the time of the settlement just a  personal injury claim.
• If the claims of a minor are being settled, it may require a proceeding in Court to approve the settlement.

A settlement agreement is frequently quickly drafted from a form at the conclusion of litigation, but some careful thought is appropriate in formulating this important document.  We generally do not recommend settling a claim, unless the entire claim is resolved with that document.