1 CREATIVE SETTLEMENT TECHNIQUES RICARDO 0. CEDILLO JASON R. CLIFFE Davis, Adad & Cedillo, hc. San Antonio, Texas ADVANCED CIVIL TRIAL LAW State Bar of Texas San Antonio - August, 1996 Fort Worth - September, 19% Houston - October, 1996
3 " RICARDO G. CEDILLO Davis, A d d & Cedillo, Inc 7710 Jones Maltsberger, Suite 400 San Antonio, Texas (210) 8224x66 FAX: (210) ' RICARDO G. CEDILLO, born San Buenaventura, Coahuila, Mexico, May 26, 1953; admitted to bar, 1979, Texas; also admitted to practice before U.S. District Court, Western District of Texas, Northern District of Texas, Southern District of Texas, and the U. S. Court of Appeals, Fifth Circuit. Preparatory education St. Mary's University (B.A., mgna cum laude, 1974); Trinity University (M.S., 1976); legal education, Harvard University (J.D., 1979). William Sessions American Inns of Court (Masters). Author: "A Constitutional Analysis of the English Li,iteracy Requirement of the Naturalization Act", 14 St. Mary's Law Journal 897 (1983); "Evidence: Expert Witneswa and Opinion Testimony", State Bar of Texas Advanced Civil Trial Court, 1985; "Handling Expert Witnesses: The Law of Evidence, Courtroom Realities, and Practice Considerations", Advanced Civil Trial Course, South Texas College of Law, 1985; "How to Offer and Exclude Evidence", University of Houston Law Center & Litigation Section of the State Bar of Texas, 1988 and 1990; "How to Make the Most of Your Expert*, Advanced Civil Litigation Short Course, South Texas College of Law, 1988; "The Battle for the Clients: Ethical Considerations of Leaving a Law Firm", Advanced Civil Litigation Short Course, Sou& Texas College of Law, 1988; "Document Destruction in Business Litigation From a Practitioner's Point-of-View: The Ethical Rules vs. Practical Realities", 20 St. Mary's Law Joumal, 1989; "Jury Selection: Voir Dire Examination and Challenges", Advanced Civil Litigation Course, University of Houston Law Center & Litigation Section of the State Bar of Texas, 1989; *Effective Examination of Experts", University of Houston Short Course, 1989; "Jury Selection: Voir Dire, Examination and Challenges", Advanced Civil Litigation Cow, University of Houston Law Center, 1990; "How to Offer and Exclude Evidence" and "Effective Examination of Experts', University of Houston Law Center, 1990; "Ethics and Malpractice Prevention in Cwsumer Litigation", DTPA and Consumer Law Institute, University of Houston Law Center, 1990; 'Damage Issues in Commercial Litigation", Mexican American Bar kssociation, CLE Seminar, 199D; "Ethical Cmsidirations l.the Use And Pruntation of Evidence", University of Houston Law Center, CLE - "How to Offer & Exclude Evidence", 1993; "Jury Voit Dire,Expert Testimony, What Jwors Really Think", 11th Aunual Trial Tactics Seminar, University of Texas at Austin, Dallas, 1993; "One Do= Tips to Reduce Discovery Costs', Advanced Evidence and Discovery Institute, University of Houston Law Foundation, 1994; "One Dozen Tips to Reduce Discovery Costs", Advanced Evidence and Discovery Institute, University of Houston Law Foundation, Member: State Bar of Texas, American Bar Association, Hispanic National Bar Association, Mexican-American Bar Association. Language: Spanish. Mr. Cedillo practices primarily in the area of bushes8 litigation.
5 Creative Settlement Techniques B-i TABLE OF CONTENTS. PREPARATION. PREPARATION. PREPARATION... 1 III. USE OF SETTLEMENT NEGOTIATIONS TO OBTAIN DISCOVERY... 3 A. Problem Solving Negotiations... 4 B. Competitive Style... 4 C. Coopwative Style... 5 A. Confidentiality... 5 G. Finalizing the Settlement... 8 VI. ETRICAL CONSIDERATIONS IN SETTLEMENT NEGOTIATIONS... 8 A. Ethical Obligations to Client... 8 B. Ethical Obligations to Opposition... 9 W. CONCLUSION... 10
7 Creative Settlement Techniques B-1 CREATIVE -MEW TECHNIQUES I. INTRODUCTION Generally, during all settlement negotiations the overriding goal of the parties is to obtain a settlement which is most beneficial to their clients. To obtain the "best possible settlement" a lawyer must prepare himself for the negotiations, prepare the client for the negotiations, how the dispute thoroughly, plan a negotiating tactic, arm himself with the knowledge associated with settlement terms, and remain flexible so that the lawyer can adjust to his adversary. In this paper I discuss these issues and volunteer some of my opinions as to how you can obtain the best possible settlement. IT. PREPAEZATION, PREPARATION, PREPARATION. Up to this point, you have most likely been preparing your case for trial. This mode of preparation - pretrial litigation - produces a very different evaluation of a case than that resulting from preparations for settlement. Litigators often become the fight, believing blindly that their side of the case is in the right and working their way, step by step, to the winner's circle. Now, though, once it is determined that settlement negotiations should commence, it is important to discard the blinders and shift the focus to a more objective viewpoint. The goal of settlement preparation is not necessarily to prepare the best case possible but to attempt to see the dispute as would a judge or jury. This mode of preparation will allow you to value the case more reasonably, to consider the true likelihood of a favorable verdict, aad to provide better, more objective advice to your client. A. Know the Facts. The first step toward such an objective viewpoint is to investigate the facts. Although this investigation begins with the essential facts giving rise to the dispute, it is oftentimes even more important to know the facts which may be brought forth along the way. These emingly unimportant facts bear new importance if, for example, they affect the credibility of a claim or other testimony. The most effective way to investigate fully the facts of the case is to actually talk with the witnasea. Too often attorneys rely on recorded statements taken months or years earlier and sometimes even on their client's belief as to a particular witness' knowledge. In doing so, they miss key pieces of information which would have affected their settlement evaluation. Fwther, they lack essential information regarding the witness' ability to testify before a jury, such as their appearance, sincerity, etc. Regardless of what you may believe a witness will say, if a jury will not believe or connect with the witness, his testimony is meaningless. Finally, it is important to consider any difficulty you may have in getting a witness to testify at trial. Although other methods exist to ensure their participation, such as using dqmition testimony, the method used may affect the impact of the witness' testimony. B. Know the Law. Once your investigation bas uncovered the evidence available to each side, you must determine what evidence will actually make it to the jury box. Too o h settlement negotiations break down kuse one side is unable to narrow their focus to the evidence that will be considered by the jury, instead believing their case strong based on extrazleous facts or inadmissible evidence. Thus, the next step in settlement preparation must be to research the law which will be applicable at
8 B-2 Creative ~ettlmeht Techniques - trial. Although such research may not pduce a clear and unecfuivocal answer, it will certainly give you a better idea, and a substantiated basis, From which you can make a well-ieasolied opinion or evaluation of the case. Because a ruling as to the admissibility of a key piece of evidence may alter the perceived value of the case, it is important to avoid relying on your experience or "gut feelings" in this regard, Instead, prepare your evaluation of the law as if you are trying to convince the judge at trial. Such preparation will not only prove helpful later in the event negotiations break down, but will enable you to now counter, with a reasoned approach, any argumemt during negotiations regarding the importance of ceain evidence. bgal restarch will also aid in determining what causes of action form the crux of the lawsuit and what claims may be disposed of by motion for summary judgment or directed verdict, Often, it. is clear that one or two causes of action are the focus of each party. Settlement evaluations and negotiations should be focused accordingly. C. Know the Venue. Finally, your investigation should focus on the venue in which the lawsuit will be tried. Your evaluation of the facts, witnesses and the law may be affected by the particular venue or judge you will encounter at trial. Important factors in this regard include potential biases common to particular communities, whether the opposing attorney or yourself has a reputation (good or bad) in the community, and whether the parties and witnesses will conuect with potential jurors from that community. Moreover, the background of the judge may provide insight into probable rulings regarding evidentiary matters and pending motions. Again, the focus of a settlement evaluation is to consider howa judge or jury will view your case - not any judge or jury, but the judge and jury which will actually take the case. D. Set the Stage. Once you have not only seen the big picture, but have come to a well-founded idea of the more narrowed picture which will be set befom a jury, it is time to set the stage for negotiations. If you have time, draft and file any special exceptions which will help you narrow the issues for trial. Also consider amending any pleadings on file. Even if you don't have time for a hearing, motions for summary judgment are often excellent tools to increase leverage during negotiations. However, a motion is worthless if it does not convince the other side of the strength of you position. Another positioning tactic is the filing of discovery requests. Merely filing such requests, even if they will not be answered prior to negotiations, may serve to alert the other side to your intentions and the possible breadth of discovery. It will also enlighten the other side about possible expenses associated with discovery, a factor which should come into play in any settlement evaluation. E. Prepare Your Client. After investigating, researching and preparing an objective settlement evaluation, it is time to talk with your client. The most important goal of your discussion will be to orient your client's goals with your own. Although your evaluation will set out your perceived value of the case, digcussion is often necessary to ensure the client not only understands your evaluation, but agrees with it md ' is ready to extend settlement authority accordingly.
9 Creative Settlement Techniques B-3 For "greener" clients, it may be important to explain in advance what they will likely encounter during negotiations. For example, explain that settlement negotiations ate an avenue of compromise. Otherwise, they may simply consider it a way to "win" the case without incurring all of the expenses normally associated with doing so. A client may also need to be prepared for the tactics of opposing parties and counsel. Describe to the client what you know about the other side's style, mannerisms and attitudes. Further, prepare the client for hard line tactics. Advise the client to keep a straight face no matter what is thrown out during negotiations. Hopefully, you have prepared them regarding the weaknesses in the case, but ensure that they are prepared for new information at all times. Finally, alert your client to the fact that although they are enmuraged to 'have their say," certain facts or evidence shouid remain confidential. Make it known that will determine if and when information should be shared for tactical reasons. In this way, the client will feet involved but will look to you for strategic decisions throughout the negotiations. At this point, you have drawn a picture for your client, in the form of a settlement evaluation. Hopfully, this picture resembles closely the picture which will be seen at trial, and evaluates the case objwtively, with both upper and lower limits. Now, it is time to convince the opposing party thst your picture is the correct one. IlI. USE OF SlETTLEMENT NEGOTIATIONS TO OBTAIN DISCOVERY. Although preparation is the key to d ing aa informed evaluation of your case, settlement negotiations may begin early in the case. Many attorneys feel that negotiations should not be used as a discovery tool, faring the other side m y not be sincere in their desire to settle. However, it is important to consider the savings in time and expense which may come as a result of early, sad mccessful, compromise. If such is the case, and preparation is limited, it is still necessary to obtain essential information regarding the basis for the opposing party's claim or defense. For example, an informed offer simply cannot be made unless you have same pmf of the plaintiffs damages. Likewise, a plaintiff could not reasanably take into account a defense such as one based on a signed release without proof of same. Thus, the exchange of pertinent information not onfy allows you to evaluate your own case fairly, but may p d e the other side to evaluate the case similarly. While a party in negotiations taking place after investigation and preparation might come to the table with a pretty set strategy, it is important in early negotiations to maintain flexibility. With the exchange of information, you must continually reevaluate your position. Thus, it is even more important to have available a client representative with not only full authority, but discretion to settle the claim. IV. SETIZEMENT TECHNIQUES. Although settlement preparation is a key part of succ~ssful negotiations, it is equally important to consider settlement styles and approaches. The style one uses either via correspondence, telephone or in face-to-face negotiations can, and usually will be, the difference in whether or not a deal gets done. The horse must always proceed the cart. Thus, the preliminary question is: Are you bargaining from a position of strength or one of weakness? The answer to this question, and those pmnted above, should be considered in choosing the appropriate techniques.
10 B4 - - Creative Wement Techniaues There are many different negotiating techniques and depending on the author, there are many aames for ' the same techniques. The three I am going to discuss are fairly broad categories. I will borrow the aames from Dodd Gifford's text and refer to them as the commtitive style, wouerativ~ style, and the problemsolving style. No one style is necessarily better than the others. Depending on the lawyer, one style may work better than another, or for that matter, you may simply enjoy using one more than the others. Nonetheless, a flexible lawyer can leanr to be an effective negotiator by using all three of the techniquehi as dictated by a given negotiation; kind of like hitting to all fields. Similarly, it is important to remain flexible throughout the negotiation and alter your style when appropriate; i.e., go with the pitch. A. Problem Solving Negotiations. To utilize this style, you must have maperation from the opposition. The negotiation must be one of integration with both parties desiring a resolution to the dispute. If a negotiation has a number;, of issues involved, then this is likely to be a successful style. Professor Gifford has opined that this style has two basic forms: 1. "bridging proposals"; and 2. "logrolling agreements". A brideine vrowsal is used when both parties negotiate an issue to obscure sach other's interests with respect to that issue. A Joerollina amssm%qt involves parties trading cwcesians on d i h t issues, such that both parties receive greater overall satisfaction than if they had conceded or compromised on all ** l' In some negotiations, a lawyer's ability ta use the non-competitive negotiating styles will depend I, sv ' I ^ I on the willingness of the opposing lawyer. Normally, lawyers who do not have a rapport may' begin with competitive styles and eventually use a non-competitive technique, Additionally, if one is bargaiaiag from a position of significantly less power, the competitive style is normally not very effective. The negotiator should remain flexible throughout the negotiatibn in deciding whetber to change styles or not. B. Competitive Style. The competitive technique depends on the souices of leverage in a given dispute. In the planning stage, a lawyer should chart out the key issues snd the lawyer's greatest, and least, sources of leverage. En the competitive phase of a negotiation, the lawyer can fire her leverage arrow6 until the opposition reaches submission, or at least a compromise. Though the proper use of the competitive tactic requim a negotiator to camouflage or hide his lowest acceptable settlement, thus convincing an opponent that the competitive negotiator has a greater perceived leverage than actusl leverage, the most difficult task for the competitive negotiator is to determine the settlement most advantageous to his client and also acceptable to the o*sition. However, through the successful use of the competitive style, one can alter the settlement mges of one's adversaries to your benefit. One must be careful not to take this technique too fiu for a variety of reasons. At the very least, it is an onerous task to get a bloody carcass (the beaten opposition) to sign settlement documents. Thus, put the sword to your opponent's neck, but do not chop it off.
11 a Creative Settlement Techniques B-5 C. Cooperative Style. The goal of the cooperative technique is to reach a settlement that is fair for both parties. An effective way to negotiate in this manner is to use objective criteria and use select terminology such ss fair, just, and reasonable. This can be a very effective tactic in a business negotiation, particularly when supported by credible data or outside sources, such as market values, professional standards, scientific judgments and external costs. V. SPECIFIC SE'LTILEMENT TERMS. Once you have reached a settlement, your work is far from complete. During the coum of settlement negotiations, many lawyers focus solely on dollars in exchange for a releasa and leave the terms of the settlement to be negotiated after an amount bas been agreed upon. However, I have found that in some cases, the terms are so cmcial that they can substantially effect the settlement amount. I highly recommend that every lawyer sit down with their client and discuss what key terms are perceived by the client as an essential element of a settlement. This is particularly true for our business clients. Does the client want a confidentiality agreement and, if so, is he willing to pay for it? Doss the client desire a structured settlement? Are their other possible responsible parties such that you may want to take an assignment of the claimant's rights? Generally, a release only releases thorn persons specifically identified or named in the releasing document. Puncan v, Gessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984). If you are involved in complex litigation, it is important to draft a release carefully and specifically to avoid dming claims not intended to be released. Thus, depmding on the issues, a clear concise statement of the dispute can be an initial obstacle ia drafting your settlement documents. Settlement documents are iakrpmted under traditional theories of contract law and must be suppod by consideration. Fraud, duress and illegality are all basis for courts refusing to enforcs settlement agreement& A. Confidentiality. One key term that can be essential to a party is a confidentiality agreement. The party that voluntarily discloses canfidential or proprietary information may want to ksop the disclosure under controls that are as tight as possible. However, sometimes the recipient of the information may want to maximize its uaa of the information. A carefully negotiated and drafted confidentiality agreement can balance these competing interests. A confidentiality agreement should broadly and comprehensively define the information disclosed, whether before or after the execution of the agreement. Information that the recipient would want to keep outside the scope of the agreement include: a information that is or becomes publicly available; information the interested party already has, information disclosed to the interested party by a third party; a information developed by the interested party independently; and
12 B-6 Creative Settlement Techniques, information that the intemted is required to disclose. Additionally a comprehensive confidentiality agreement should also include, if appropriate: permitted USM and disclosures; retun of the information; procedures for permissible~disclosure; remedies upon disclosure, for example: - attorney's fees, waiver of jury trial, and representation of rightful disclosure; - venue provisions, rights to equitablekmsdies; and indemnification; - possible liquidated damages clause; e' the term of the agreement. As in all areas of the legal practice, watch out for qualifying language because while one haod giveth, the other may be taking it back. For example, if a party is permitted to disclose &be proprietary information if ordered by a valid subpoena issued by a court of competent jurisdiction the burden has been placed on the discloser to make legal decisions regarding - the validity of the order and the compekce of the issuing court. B. dssignment. Generally, in Texas, causes of action, including personal injury actions, are assignable. Duke v. Brookshire Grocerv Comwanv, 568 S.W.2d 470 (Tex. Civ. App. - Texarkana 1978, no writ). Thus, a settling party may want to negotiate an assignment of the releasor's claims a gw any and all other parties involved in the transaction, incident, or accident. However, in personal injury actions there has been some recent case law limiting the assignability of certain claims. Charles v. Tamez, 878 S.W.2d 201 (Tex. App. - Corpus Christi 1994, no writ). C. Structured Settlements. Structured settlements are centrally a product of Section 104(a)(2) of the Internal Revenue Code which recognizes personal injury sad wrongw death settlement fuda to be tax exempt and extends this exemption status to funds which ara paid in periodic installments. If you repment insurance companies in personal injury actions, you're probably fairly well versed in structured settlements. Nevertheless, it is important to remember that many insurers prefer the use of a structured settlement rather than a one time cash payment. Most of the major insurers have life companies that will write an annuity thus keeping the settlement funds in the hands of the insurer until the payments come due. On the flip side, an individual claimant may be more willing to settle when presetlied with a structured settlement because of the appearance that he or she is receiving more money, even if over time. This is particularly true if payments are to be made for life and thus the claimant can see a steady income stream for the future. I
13 Creative Settlement Techniques B-7 If represented by counsel, a claimmt's attorney may fmd structured sett1emant.s as au attractive vehicle to resolve those claims or cases where a client is holding up a settlement that you know she should take, yet the client is convinced a jury will award him millions as a result of a minor impact accident tbat only required a couple of trips to a chiropractor. Please note that it is extremely important to use the appropriate documentation in stnrctuting settlements so that your client obtains the tax advantages to which they m y be entitled. Several revenue rulings have held that in determining taxability issues you should look to the plaintiffs complaint. Thus, the final complaint should only allege damages for personal injury. If you have bystander claims, you should draft the settlement documents to reflect language that they are being settled by the cash payment and the structured payments are tied to the penmnal injury claims. Any punitive damage claims should be deleted from the final petition. Of course, you may want to seek the services of an accountant for the answers to the taxability questions. D. Choice of Law. A choice of law clause may be the most commonly overlooked clause in the drafting of a settlement agreement. A choice of law clause is particularly importaut when drafts of documentf3 are sent via fax or mail to parties in other states, or outside the country, for revision8 andlor sigxlahlrss. Parties can choose the state's law that is to be applied to the interpretation of a contract, as well as the venue andlor forum. The presence ot absence, ~IJ the case may be, of a choice of law clause can affect the enforceability of all of the other clauses in your settlement documents. E. Bet Deal. In a case involving multiple defendants, a plaintiff can settle with one or more of the defendants and provide that the plaintiff will not enter into a mom favorable settlement with other defendants without giving the settling defendant a refund. This is also refed to as a "Most Favored Nations Clause" or "Refund Clause." A "Best Deal" clause can be particularly useful in a complex case or a toxic tort case, whm attorney's fees become an integral factor in tbe settlement equation. Similarly, a plaintiff ia these types of cases can urn a "Best Deal" settlement to help fund the litigation against the non-settling defendants. Thus, the clauses have utility for both plaintiffs and defendants. The timing element as to when you determine the refund is a key to the enfozwability of the clause. The refund can be tied to settlement with other parties, entry of a judgment, a final nonappalable judgment, or just about any other event, to determine whether a refund is owed. F. Miscellaneous. Other clauses you may want to consider in your settlement documents include: indemnity; covenant not to sue; covenant not to execute; or a a non-compete clause.
14 B-8 Creative!kttlement Techniques, G. Rdizing the Settlement. Always talc0 precautions to insure you have obtained a full rnl~sl~e from the partits you intend to settle with. For example, if you are settling with person8 lacking legal capacity remember that you must Beelr: court approval of the settlement. Additionally, lately we bave seen a lot of common law wives, &ranged spouses, and children born out of wedlock papping into pemnal injury claims. This should serve to remind us that in these cases, the defense and plaintiffs attorneys should always ask for the hal decres of a divorce, a birth certificate, or other pmf of familial relationship. Additionally, in almost all wrongful death settlements, you may wmt to consider opeaing a probate estate so that you can have the court determine the heirs and approve of the W. E~CAL CONSIDBRATIONS IN SETTLEMENT NEGOTIATIONS. A. Ethical Obligations to Client. The Texas Disciplinary Rule of Professional Conduct 1.02(a)(2) provides that a lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter, except as authorized by law. Hopefully, in preparing for settlement negotiations, you have ensured that you and your client value the case similarly and have evaluated the opposition in a like manner. However, at times negotiations may bring forth information not considered in your evaluation. Although you should counsel your client to weigh such new information carefully and possibly await decision until further investigation and/or research, if your client wishes to settle, you must do m. Further, Rule 1.02 requires atl attorney to communicate offer of settlement to the client.,' Thus, even if the offer is seemingly outragmus and unreasonable, it must be passed on. To. * ensure that your client will not react out of feat or intimidation as the opposing party would hope a in such a case, it would be prudent to include with the offer an evaluation of the case. If,, however, prior discussions with your client have lefi it clear that the settlement offer will not be accepted, Rule 1.03 advises that you need not pass it on to the client. Although the client has the ultimate decision regarding settlement, the lawyer must make sure that it is an informed one. Texas Disciplinary Rule of Professional Conduct 2.01 provides that "in advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advise." In addition, Rule 1.03(b) requires that "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Together, these provisions make it clear that a lawyer must provide the client with candid, clear, and comprehensive advice which will allow the clht to make an informed decision about any potential settlement offer. Once a decision is made, hawever, the lawyer must abide by the client's wishes. In some situations where a client wishes to accept a settlement contrary to the lawyer's advice, I recommend having your client sign an acknowledgment that he is settling the case wntrsry to your recommendation. This af course can be dangerous if your client then backs out of the settlement and you lose at trial, thus I would reserve this tactic for exceptional situations. b addition to these concerns, the economic interests involved in a settlement negotiation can raim ethical considerations for both sides of the bar. Rule 3.02 stah that "in the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter." This rule can be implicated by both ths
15 Creative Settlement Techniques B-9 decision to make an offer, and the decision to accept a settlement offer. A lawyer must be mindful to offer candid advice about the poteptial cost of either failing to offer a settlement or refusing to agree to a settlement offer. Each of these decisions can potentially increase the costs and risks of pursuing the case. Other Rules of Professional Conduct govern specific situations which a lawyer may be confronted with during the settlement process. Rule l.os(f) provides that "a lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the client." This rule requires a lawyer to handle each client's settlement claim separately and to conform to the ethical canons discussed abave with taspect to each client. Irr addition, Rule 5.06 states that "a lawyer shall not participate in offering at making an agreemeat in wbich a restriction on the lawyer's right to practice is part of the settlement of a suit of controvemy." These specific rules may not be implicated often; however, it is important to remember that a violation of these rules could result in disciplinary action. Finally, the potential for conflicts of interest which may arise during settlement negotiations should be a primary concern if insurauce i m am involved. In such cases, the attorney represents the insured, but is paid by the insurance company. Rule 1.08 of the Texas Disciplinary Rules of Professional Conduct specifically prohibits such a relationship unless the client cor18e~~ts and the "lawyer's independence of professional judgment* is adequately protected and ensured. Moreover, the same rule requires that, even in such a tripartite relationship, the attorney must maintain the appropriate confidentiality as required by Texas Disciplinary Rule of Professional Conduct The Texas Supreme Court has specifically stated that counsel owes the same loyalty to the insured as if the bured had pemdly bired him. Bmulovers'Cas. Co. v. Tillev, 496 S.W.2.d 552, flex. 1973). However, the attorney also owes a duty to the insurance company in that the insurer has sought and paid for his services. Conflicts arise, for example, when the settlement offer is higher than policy limits or when them is a question of coverage. h either situation, the idsurance company may have less inclination to settle than does the insured. To protect the client (the insured), you must inform the insured of any exposure he may face if, in fact, coverage is M ed or if a judgment is rehlmed in excess of policy limits. If the insured runs no risk of exposure, i.e. the claimed damages or settlement demand is less than policy limits, your duty is merely to obtain an advantageous attlement for the insurer. B. Ethical Obligations to Opposition. In addition to etbical obligations owed by a lawyer to bis client, a lawyer m t also abide by ethical mans when negotiating with opposing counsel. As a negotiator, a lawyer sedrsl a d t advantageous to the client but this must be done consistent with the requirements of hwsgt dealing with others. There are no specific rules of Professional Conduct governing settlement negotiation tactics, however, the requirement to "maintain the highest standards of ethical conduct" applies. Therefore, a lawyer should not misrepresent facts or in any way deal dishonestly with another lawyer during settlement negotiations. Moreover, throughout the settlement process, a lawyer should be mindful of the Pmmble to the Texas Rules of Professional Conduct's admonition: Each lawyer's own conscious is the touchstme against which to test the extent to which his actions may rise above the disciplinary standards prescribed by
16 B-10' " Creative Settlement Techniques them rules. The desire for the respect and confidence of the members of the profession and of the mciety which it serves provides the lawyer the incentive to attain the highest possible degree of ethical conduct. The possible loss of h t respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise. Tex. C3ov't. Code Ann. T.2, Subt. Q, App. A, Art (Preamble: A Lawyer's Responsibilities, cmt. 9). CONCLUSION As we are all aware, disputes come in many shapes and sizes, and therefore, I would never recommend that you employ all of these techniques in all of your settlement negotiations. Clients' nee& differ, the amounts involved in a dispute differ, and the willingness of your opposition to resolve a dispute may differ as well. However, it is important for all of us to take a step, or two, back and look at the forsst. We should ask ourselves: WHAT IS THE BEST POSSIBLE SETTLEMENT FOR OUR CLIENT IN THIS DISPUTE? HOW DO WE OBTAIN THE BEST POSSIBLE SETTLEMENT? DID I OBTAIN A GOOD SETTLEMENT? We must remember that lawyers exist to help others, and helping others by enforcing their rights, plaintiff or defense, is our professim.. The bore creative we are in achieving a s+tlent that favombly resolves.$, our clients' disputes, the more we will have succeeded as individuals, as a profession, and as a society.
THE THREAT OF BAD FAITH LITIGATION ETHICAL HANDLING OF CLAIMS AND GOOD FAITH SETTLEMENT PRACTICES By Craig R. White SKEDSVOLD & WHITE, LLC. 1050 Crown Pointe Parkway Suite 710 Atlanta, Georgia 30338 (770)
The Enforceability of Mediated Settlement Agreements By: Thomas J. Smith The Law Offices of Thomas J. Smith San Antonio, Texas NIGHTMARE ON MEDIATION STREET You mediate a case where the Plaintiff is suing
Personal Injury Litigation The Anatomy of a New York Personal Injury Lawsuit An ebook by Stuart DiMartini, Esq. 1325 Sixth Avenue, 27 th Floor New York, NY 10019 212-5181532 dimartinilaw.com Introduction
Pretrial Practice 2015 4:00 P.M. PANEL TOPIC SETTLEMENT AGGREGATE SETTLEMENT CONCERNS May 12, 2015 New York, New York Kelly Strange Crawford, Esq. AGGREGATE PROCEEDINGS Class Actions SINGLE LAW SUIT PROCEEDING
SMALL CLAIMS COURT What Is Small Claims Court? Nebraska law requires that every county court in the state have a division known as Small Claims Court (Nebraska Revised Statute 25-2801). Small Claims Court
ETHICS IN JUVENILE CASES THE DEFENSE PERSPECTIVE 19 th ANNUAL JUVENILE LAW CONFERENCE PROFESSOR ROBERT O. DAWSON JUVENILE LAW INSTITUTE February 22 24, 2006 Westin Park Central Hotel Dallas, Texas BRIAN
Reflections on Ethical Issues In the Tripartite Relationship [click] By Bruce A. Campbell 1 Introduction In most areas of the practice of law, there are a number of ethical issues that arise on a frequent
What Trustees Should Know About Florida s New Attorneys Fee Statute By David P. Hathaway and David J. Akins Introduction More and more lawsuits are filed in Florida alleging that the trustee of a trust
If you have been sued as a defendant in a civil case...keep reading. Court procedures can be complex. This brochure was developed to help Ohioans who are considering representing themselves in court. It
IN THE SUPREME COURT OF TEXAS NO. 13-1006 IN RE ESSEX INSURANCE COMPANY, RELATOR ON PETITION FOR WRIT OF MANDAMUS PER CURIAM Rafael Zuniga sued San Diego Tortilla (SDT) for personal injuries and then added
MULTIPLE REPRESENTATION AND DRAFTING CONTINGENCY FEE AGREEMENTS ADVANCED PERSONAL INJURY LAW COURSE CLE TEXAS STATE BAR 2013 S AM J OHNSON S COTT, DOUGLASS & MC C ONNICO, L.L.P. A TTORNEYS A T L AW WWW.
Missouri Small Claims Court Handbook The Missouri Bar Young Lawyers' Section TABLE OF CONTENTS I. INTRODUCTION TO THE SMALL CLAIMS COURT...1 Page II. THINGS TO CONSIDER BEFORE BRINGING A CLAIM...1 A. WHO
Medical Malpractice Litigation What to Expect as a Defendant Being named as a defendant in a malpractice suit may be your first exposure to civil litigation. You will probably wish it would just go away.
A Practical Guide to Hiring a LAWYER A PRACTIAL GUIDE TO HIRING A LAWYER I. Introduction 3 II. When do you Need a Lawyer? 3 III. How to Find a Lawyer 4 A. Referrals 4 B. Lawyer Referral Service 5 C. Unauthorized
PRODUCT LIABILITY Product Liability Litigation The Effect of Product Safety Regulatory Compliance By Kenneth Ross Product liability litigation and product safety regulatory activities in the U.S. and elsewhere
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00125-CV CHRISTOPHER EDOMWANDE APPELLANT V. JULIO GAZA & SANDRA F. GAZA APPELLEES ---------- FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
Opinion #177. Advancing Litigation Costs Through Lines of Credit Issued by the Professional Ethics Commission Date Issued: December 14, 2001 Facts and Question An attorney has requested an opinion on whether
LITIGANTS MANUAL FOR USE IN THE MARION COUNTY SMALL CLAIMS COURTS The Indiana General Assembly created the Marion County Small Claims Courts and provided that litigants may try their cases in such courts
ABA Section of Litigation Corporate Counsel CLE Seminar, February 11-14, 2010 Winning The Settlement Keys to Negotiation Strategy Winning The Settlement Keys to Negotiation Strategy Thomas A. Dye Carlton
RICHEL RIVERS Rivers McNamara, PLLC 1209 West Fifth Street, Suite 200 Austin, Texas 78703 (512) 439-7000 firstname.lastname@example.org EDUCATION University of Texas School of Law (J.D. 1976) Trinity University
Utah Family Law, LC Tel. No. 801-466-9277 E-mail: email@example.com Attorney Eric K. Johnson - Attorney Russell W. Hartvigsen Mail: 2666 South 2000 East, Suite 101 Salt Lake City Utah 84109 REMEMBER:
VIRGINIA ACTS OF ASSEMBLY -- 2015 SESSION CHAPTER 585 An Act to amend and reenact 38.2-2206 of the Code of Virginia and to amend the Code of Virginia by adding in Article 7 of Chapter 3 of Title 8.01 a
Case 4:06-cv-00191 Document 12 Filed in TXSD on 05/25/06 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION BARBARA S. QUINN, Plaintiff, v. CIVIL ACTION NO. H-06-00191
Medical Malpractice VOIR DIRE QUESTIONS INTRODUCTION: Tell the jurors that this is a very big and a very important case. Do a SHORT summary of the case and the damages we are seeking. This summary should
AMENDED IN ASSEMBLY APRIL 14, 2015 california legislature 2015 16 regular session ASSEMBLY BILL No. 597 Introduced by Assembly Member Cooley February 24, 2015 An act to amend Sections 36 and 877 of, and
Shareholder Amy Harris joined Macdonald Devin in 1989 and represents clients in state and federal trial and appellate courts, primarily in insurance defense litigation and insurance coverage. She has served
What to Expect In Your Lawsuit A lawsuit is a marathon not a sprint. Stewart R. Albertson. There is a saying that the wheels of justice move slowly. That is as true today as when it was initially stated.
Clark County District Court SMALL CLAIMS COURT INFORMATION INTRODUCTION The Small Claims Department of District Court allows a person or business with a legal dispute to sue without hiring an attorney.
CIVIL LITIGATION PRACTICE FOR PARALEGALS III. PREPARATION OF PLEADINGS Many attorneys, paralegals and legal assistants refer to pleadings as all court papers in the case. Technically speaking, the pleadings
Bad Faith: Choice of Law Matters Edwards Angell Palmer & Dodge Insurance and Reinsurance Review - September 2010 Marc S. Voses Choice of law issues cannot be overlooked in insurance bad faith litigation,
Jurisdictional Limits The justice courts have exclusive jurisdiction or the authority to hear all civil actions when the amount involved, exclusive of interest, costs and awarded attorney fees when authorized
Reversed and Remanded and Opinion filed August 16, 2001. In The Fourteenth Court of Appeals NO. 14-00-00177-CV HENRY P. MASSEY AND ANN A. MASSEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF COURTNEY
JUSTICE COURT # 2 GRAHAM COUNTY STATE OF ARIZONA P.O. BOX 1159, 136 WEST CENTER STREET, PIMA AZ 85543 PHONE (928) 485-2771 FAX (928) 485-9961 SMALL CLAIMS INSTRUCTIONS FOR FILING ***EFFECTIVE JANUARY 1,
IMPROVING SETTLEMENT SAVVY Kathy Perkins Kathy Perkins LLC, Workplace Law & Mediation www.kathy-perkins.com In these difficult economic times, parties may be looking to reduce litigation costs and risk
Hijacked by Ulterior Motives: The Manipulation of the Mandatory Mediation Process in Ontario By: Bruce Ally B.A., M.A., PhD., OCPM., & Leah Barclay B.A. Adv. The use of mediation as a method of conflict
Nourishing the Creative Spark! 213 W. Institute Place, Suite 403 (312) 649-4111 Phone Chicago, IL 60610 (312) 944-2195 Fax firstname.lastname@example.org This guide is intended to give a brief overview of some aspects
Title XLV TORTS Chapter 768 NEGLIGENCE View Entire Chapter 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification;
A Practical Summary of the New Supreme Court Civil Rules for Clark Wilson LLP Insurance Clients by: Jennifer Loeb Clark Wilson LLP tel. 604.891.7766 email@example.com Edited by: Larry Munn Clark Wilson LLP
I. Overview 6.1 6 First-Party Litigation II. Initial Client Meeting A. In General 6.2 B. Identifying the Proper Insurer 6.3 C. Determining the Types of Benefits Recoverable 1. In General 6.4 2. Work Loss
MEMORANDUM ON OFFERS TO SETTLE 1. What is an Offer to Settle? 2. Why Make an Offer to Settle? 3. How Can it Help to Make an Offer to Settle? The purpose of this memorandum is to assist you in understanding
EARLY CARE & EDUCATION LAW UNIT Publication Date: November 2013 WHAT YOU NEED TO KNOW ABOUT SMALL CLAIMS COURT In the operation of your child care business you may encounter problems which force you to
RULES OF LAW Injury Case Roadmap: The Legal Process for Personal Injury Cases BY EDDIE E. FARAH & CHARLIE E. FARAH, ATTORNEYS AT LAW ...insurance companies more and more are being run by bean counters,...
TAKE-1 YOU AND YOUR LAWYER XVIII AIRBORNE CORPS LEGAL ASSISTANCE OFFICE YOU AND YOUR LAWYER 1. Q. HOW DO I CHOOSE A PRIVATE ATTORNEY? A. There are many ways to select a private attorney if you do not have
This article was prepared or accomplished by the contributing author in his/her personal capacity. The opinions and positions expressed in this article are the author's own and do not necessarily reflect
A Citizen s Guide to the Criminal Justice System: From Arraignment to Appeal Presented by the Office of the Richmond County District Attorney Acting District Attorney Daniel L. Master, Jr. 130 Stuyvesant
Pg 1 of 10 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------x In re: SOUND SHORE MEDICAL CENTER OF WESTCHESTER, et al., 1 Debtors.
Management-Side Strategies for Handling the Pro Se Employment Litigant By Mark M. Whitney i As someone who litigates employment claims on behalf of management primarily in state and federal courts, one
THOMAS W. WILLIAMSON, JR. Tom is a graduate of Virginia Military Institute and from T. C. Williams School of Law, University of Richmond and a member of the law firm of Williamson Law LC, Richmond, Virginia.
A Guide for the General Practitioner: Ethical Issues When Evaluating, Selecting and Handling Personal Injury Case I. Finding the Case: For the general practitioner of law, most personal injury claims come
An Oral Deposition in Texas Litigation Prepared by: Jim L. García Attorney at Law Cersonsky, Rosen & García, P.C. 1770 St. James Place, Suite 150 Houston, Texas 77056 Telephone: (713) 600-8500/Fax: (713)
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. [no change] (b) Factors to Be Considered in Determining Reasonable Fees and Costs. [no change]
KENTUCKY BAR ASSOCIATION RULES OF THE SUPREME COURT OF KENTUCKY PRACTICE OF LAW SCR 3.130(1.8) Conflict of interest: current clients; specific rules (a) A lawyer shall not enter into a business transaction
05/02/03 See News Release 032 for any concurrences and/or dissents. SUPREME COURT OF LOUISIANA NO. 03-B-0910 IN RE: HARRY E. CANTRELL, JR. ATTORNEY DISCIPLINARY PROCEEDINGS PER CURIAM This matter arises
Case 06-03280 Document 35 Filed in TXSB on 11/27/06 Page 1 of 7 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE DAVID WIMBERLY, CASE NO. 05-81669-G3-13 Debtor,
I. Synopsis WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY MEDICAL LIABILITY & PUBLIC HEALTH PROFESSOR STEVEN M. PAVSNER SYLLABUS The objective of the seminar, Medical Liability and Public Health, is to
Terms and Conditions for Tax Services In the course of delivering services relating to tax return preparation, tax advisory, and assistance in tax controversy matters, Brady, Martz & Associates, P.C. (we
IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 13 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. WILLIAM M. LOGAN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE In the Matter of a ) Uniform Pretrial Order ) ) Administrative Order 3AO-03-04 (Amended) UNIFORM PRETRIAL ORDER In order
CIVIL TRIAL RULES of the COURTS OF ORANGE COUNTY, TEXAS Table of Contents GENERAL MATTERS Addendum to Local Rules Rule 1.10 Time Standards for the Disposition of Cases...2 Rule 1.11 Annual Calendar...3
LEGAL MALPRACTICE AND THE CRIMINAL DEFENSE ATTORNEY By Peter L. Ostermiller Occasionally, a defendant, while incarcerated and apparently having nothing better to do, will file a Motion under RCr. 11.42,
CIVIL APPEALS PAMPHLET FOR THE PRO BONO PROJECT SPONSORED AND ADMINISTERED BY THE PRO BONO COMMITTEES FOR THE STATE BAR OF TEXAS APPELLATE SECTION AND THE HOUSTON BAR ASSOCIATION APPELLATE SECTION IN THE
Common Myths About Personal Injury and Wrongful Death Cases 1 By B. Keith Williams There are several myths about accident cases and the attorneys that handle them. It is important to keep these myths in
Genevieve Hébert Fajardo, Clinical Professor St. Mary s Law School Homecoming CLE, March 21, 2014 Part I: Fee Agreements Today s Takeaway on Fee Agreements: You are CRAZY and RECKLESS if you do not have
ISBA Advisory Opinion on Professional Conduct ISBA Advisory Opinions on Professional Conduct are prepared as an educational service to members of the ISBA. While the Opinions express the ISBA interpretation
INTRODUCTION TO SMALL CLAIMS COURT TABLE OF CONTENTS INTRODUCTION TO SUE OR NOT TO SUE? HOW TO FILE A SMALL CLAIMS CASE WHERE TO FILE FILING FEE NOTICE TO THE DEFENDANT COUNTERCLAIMS PREPARING FOR TRIAL
Caught in the Middle: What to Do When Conflicts Arise Between Policyholders and Insurers Robert A. Shults Jacob A. DeLeon McFall, Sherwood & Breitbeil, P.C. Houston, Texas Within the tripartite relationship,
COMBUSTION ENGINEERING 524(g) ASBESTOS PI TRUST ALTERNATIVE DISPUTE RESOLUTION (ADR) PROCEDURES Pursuant to Section 5.10 of the Combustion Engineering 524(g) Asbestos PI Trust Distribution Procedures (
Kenneth B. Walton Partner, Chair, Employment Practices Group Member, Executive Committee firstname.lastname@example.org 617-406-4524 direct 617-406-4501 fax Experience Kenneth B. Walton is a Founding Partner
Author: Attorney Dan A. Riegleman N63 W23965 Main Street Sussex, Wisconsin 53089 Prepared: 06/01/10 WHITE PAPER: DR2504 Addressing Abusive Lawyer Conduct in Relation to Litigation Proceedings There are
Local Rule 1301 Scope. Compulsory Arbitration Local Rule 1301 Scope. (1) The following civil actions shall first be submitted to and heard by a Board of Arbitrators: (a) (b) (c) (d) Civil actions, proceedings
IN THE COMMON PLEAS COURT, PREBLE COUNTY, OHIO IN THE MATTER OF THE CIVIL AND CRIMINAL LOCAL RULES: ENTRY The following local rules are adopted to govern the practice and procedures of this Court, subject
Discovery in Bad Faith Insurance Claims: State of the Law, Successful Strategies Teleconference Program Wednesday, March 29, 2006 Topic III A. Who is suing? Does it matter? 1. Whether suit is brought by
The trademark lawyer as brand manager This text first appeared in the IAM magazine supplement Brands in the Boardroom 2005 May 2005 For further information please visit www.iam-magazine.com Feature The
Advice Note An overview of civil proceedings in England Introduction There is no civil code in England; English civil law comprises of essentially legislation by Parliament and decisions by the courts.
Some Things You Should Know An Introduction to the Federal Public Defender=s Office and the Federal Court System Office of the Federal Public Defender Southern District of West Virginia 300 Virginia Street
A Federal Criminal Case Timeline The following timeline is a very broad overview of the progress of a federal felony case. Many variables can change the speed or course of the case, including settlement
In-House Insurance Defense Counsel Permissible Cost-Saving Measure or Impermissible Conflict of Interest? by Nathan Price Chaney Why have In-House Counsel? From Company s point of view: Control Effective
PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney. Be it enacted by the People of the
Responses submitted by: Name: Roddy Bourke Law Firm/Company: McCann FitzGerald Location: Dublin, Ireland 1. Would your jurisdiction be described as a common law or civil code jurisdiction? The Republic