Deck 10: Settlement and Other Alternative Dispute

Question 1

Your attorney has asked you to find examples of mediation and arbitration provisions that may potentially be used in a settlement agreement. Locate five sample provisions for her review and place them in your systems folder.

Answer 1

This answer will vary with each student. Students should consider searching on the American Arbitration and American Mediation Web sites for some standard provisions. Forms form banks and law firms should be checked.

Question 2

What is the definition and purpose of a pretrial conference? What Federal Rule applies? What state rule applies?

Answer 2

Federal Rule of Civil Procedure 16, individual state rules, local practice, and the preference of a particular judge determine what happens at the pretrial conference. In some jurisdictions the conference is mandatory, and the judge is active in trying to settle the case. In other jurisdictions the conference must be requested, and the judge may refrain from any involvement in settlement discussions.
A pretrial conference is normally conducted in the judge's chambers and is attended by the attorneys for the parties and the judge. Clients may be required to attend. Traditionally the
conference is a discussion by the attorneys of the facts in the case, the evidence to prove those facts,
the issues remaining in the case, when and how long trial will be, and, if possible, whether settlement is in the offing. Federal Rule 16 now requires a more extensive pretrial conference process involving more than one meeting in many cases. In this context the pretrial conference takes on the important role of facilitating the overall planning and management of the progress of the case beginning at a much earlier point in the litigation (within 90 days of the defendant's first appearance or within 120 days of serving the complaint on the defendant, whichever is shorter).

Question 3

What kinds of information needed in preparing for settlement and in evaluating a case can be obtained from a reference librarian or online service?

Answer 3

Life expectancy statistics, vocational opportunities for the client, estimated inflation trends that may affect the cost of a child's college education, future medical care, estimated lost income and benefits, and basic cost of living (vocation experts and economists may need to be consulted) are areas that may need to be researched.

Question 4

Locate three examples of settlement agreements. Review the provisions and identify the common provisions in each for future reference.

Question 5

Place a page reference or copies of the pretrial conference preparation checklist and the attorney's authorization from the client to settle in your systems folder.

Question 6

During the settlement process, what are the goals of communication with clients? With insurance adjusters?

Question 7

Draft a checklist of or enter text page references to the items that need to be researched and summarized in preparation for settlement. Indicate the sources for such information. Place the checklist in the settlement section of your systems folder.

Question 8

What are the ethical considerations applicable to the settlement process? Why are they important?

Question 9

What must be investigated and summarized in preparing for settlement? Why is this information necessary?

Question 10

In the ethics section of your systems folder, add page references to ethical considerations for the settlement process, the cited sections of the Model Rules of Professional Conduct, and the rules or ethical standards in your state.

Question 11

What formulas and processes are utilized to calculate various kinds of damages?

Question 12

In general, explain the paralegal role in ADR processes.

Question 13

How do hedonic damages differ from pain and suffering?

Question 14

What is your role in the settlement process?

Question 15

What is a settlement?

Question 16

What things should you do to assist the attorney in preparing for the pretrial conference?

Question 17

What is an authorization to negotiate (compromise), and why is its execution by the client important?

Question 18

What are the contents and what is the purpose of a release? A settlement agreement?

Question 19

What is included in a settlement brochure and a settlement letter or précis? What is the difference between the two and the primary reason for the difference?

Question 20

What is ADR and its advantages and disadvantages?

Question 21

(a) Assume that Mr. Hart has agreed to the terms of your settlement. Draft the settlement documents between Mrs. Forrester and Mr. Hart.
(b) For purposes of this case assignment, assume that Mercury Parcel and their insurance company has agreed to settle with Mrs. Forrester. Mercury has agreed to pay the maximum limits under its insurance policy and will admit that Mrs. Forrester was not negligent, but also will not admit their liability. Prepare the final settlement documents between Mercury and Mrs. Forrester. Be creative in preparing your document. Review other settlement agreements to determine the types of provisions that should be included in the document.

Question 22

Identify two main differences between arbitration and mediation.

Question 23

Using your imagination to provide missing facts, draft a settlement précis or settlement letter from Mrs. Forrester to Mercury Parcel Services, Inc. and Richard Hart Prepare a joint letter to Mercury parcel and Mr. Hart and then prepare individual letters to both defendants.

Question 24

Assume that the Congdens, the campground owners in Case II, are told by you that their attorney, your supervisor, advises them to agree to settle their case by paying Mr. Ameche $60,000. The Congdens say no and want to go to trial. Your attorney believes that the jury will hold the Congdens liable for $150,000.
a. Considering that lawyers are supposed to exercise their independent judgment, may the attorney ethically accept the offer, since it is such a good one?
b.Are there any other ethical concerns raised in this scenario?

Question 25

Go to juryverdicts.com. What is the jury verdict publisher for your state or the nearest state where a publisher is available? What information does the publisher offer?

Question 26

Be able to define the following terms and explain their differences and similarities: voluntary arbitration and court-annexed arbitration; voluntary mediation and mandatory mediation; summary trial and summary judgment.

Question 27

What factors either favoring or discouraging settlement do you see present in the Ameche case? The Coleman case (Case III)? The Briar Patch Dolls case (Case IV)? The Rakowski case (Case V)? Discuss.

Question 28

What is meant when a court dismisses a case with prejudice and without prejudice? Identify the differences and the significance.

Question 29

Draft an outline of the contents of a settlement brochure for the Ameche case, Case II from Chapter
1, indicating what should appear and in what order. Prepare a settlement agreement with a release for your supervising attorney's review.

Question 30

Research to determine if your state requires consideration to validate a release and to see if a covenant not to sue is required.

Question 31

Why are cases settled? What factors must be taken into consideration?

Question 32

What is your role in the settlement process?

Question 33

Go to bjs.gov. What are the Bureau of Justice statistics regarding punitive damage awards in state courts? What are some of the Bureau's latest findings on the civil bench and jury trial awards of plaintiffs in state court cases?

Question 34

Draft an outline of the contents of a settlement brochure for the Forrester case indicating what should appear and in what order. Compare your list of components and discuss the advantages of each in small groups with class members. Make a list of the typical components of a settlement brochure and place it in your systems folder.

Question 35

By researching your state statutes and local federal rules, determine whether your state has a provision for arbitration or mediation. If so, determine what types of cases and dispute amounts are considered for the program. If your state has no such system, write a proposal to your local newspaper or state bar association on why you believe there should or shouldn't be such a system. Discuss and defend your proposals in class.

Question 36

What factors either favoring or discouraging settlement do you see present in the Forrester case? Discuss.

Question 37

What are the primary reasons for the use of alternative dispute resolution? Now, applying your reasoning, assume that Teeny Tiny Manufacturing and Briar Patch Dolls from case scenario IV agree to arbitrate or mediate their dispute. To whom might they turn for assistance? How can this assistance be located?

Question 38

Using the Settlement Agreement form in Chapter 10 of the text, one of your state's form, or a sample from the Internet, and information on the Coleman v. Make Tracks, Inc. case, draft a settlement agreement that reflects a fair settlement in the case. Assume for purposes of this assignment that Sean Coleman had medical expenses of $75,000, lost wages of $65,000, and out-of- pocket expenses of $10,000. He will have a permanent limp due to his injuries. (Be creative in drafting your agreement.)

Question 39

Locate local companies or organizations that provide mediation and arbitration services. Identify those companies with contact information. Save in your systems folder for future reference.

Question 40

Determine the procedures that your local U.S. district court judges employ at their pretrial conferences. Identify each judge and his or her requirements. Place that information in your systems folder.

Question 41

Early case assessment involves arbitration.

Question 42

Whether settlement agreements should be secret is controversial.

Question 43

Assume that Teeny Tiny Manufacturing and Briar Patch Dolls agree to arbitrate or mediate their dispute. To whom might they turn for assistance? How can this assistance be located?

Question 44

Mandatory arbitration clauses are controversial because of a frequent disparity in bargaining power.

Question 45

Describe the purposes of Rule 16 of the Federal Rules of Civil Procedure. Does your state rule on settlement contain these broad purposes?

Question 46

Calculate the damage amounts in the following fact situation (show calculations on workbook page): Darlene Rakowski's damages based on $500 of embarrassment per day for 100 days; $250 of anxiety per day over losing job for 20 days; lost wages for days caused to miss work at $85 per day for 20 days; psychiatric counseling at $100 per session, 1 session per week, for 8 weeks; and future psychiatric sessions, 10 per year for the next 5 years, with reduction to present cash value of 5 percent. Assume medical costs will go up 8 percent per year.

Question 47

Pain and suffering is an example of exemplary damages.

Question 48

In settlement, a release excuses the defendant from further liability.

Question 49

A bid for sympathy has no place in a formal document such as the settlement request.

Question 50

Consortium damages are calculated by this formula: value per day times days per year times years of life expectancy times percentage allowable inflation factor.

Question 51

What are LOELs, and why would a plaintiff want these separated from damages for pain and suffering? Do you think people ought to receive such damages? What is the problem with such damages?

Question 52

What are the primary reasons for the use of alternative dispute resolution?

Question 53

Arbitration usually takes less time than a trial.

Question 54

An adjudication on the merits leaves issues that can be brought up at trial.

Question 55

Abilities of opposing attorneys should be researched for trial but are not important in settlement considerations.

Question 56

Alternative dispute resolution is effective only in small cases.

Question 57

What should be included in the cover letter that goes to the opponent with the settlement brochure?

Question 58

What is a pretrial statement (memorandum) and what is one of its advantages?

Question 59

The settlement request usually comes from the plaintiff.

Question 60

If you work for the defendant, and the plaintiff sends summarized medical reports and witness statements rather than originals, what should you do?

Question 61

Which of the following cannot be considered in calculating damages?

A) Losses that occurred before the cause of action
B) Losses that occurred since the cause of action
C) Losses that are anticipated but have not yet occurred
D) Hedonic damages

Question 62

How many civil cases are settled before trial?

A) 40-50 percent
B) 20-25 percent
C) 75-80 percent
D) over 90-95 percent

Question 63

List three types of settlement requests from least to most expensive.

Question 64

Arbitration is

A) required by the Federal Rules of Civil Procedure.
B) not allowed in federal cases.
C) encouraged by state and federal law.
D) not allowed by most states.

Question 65

Which is not one of the "three strikes" in evaluating an opponent's injury claim?

A) The party has not seen a doctor.
B) The party has not been hospitalized.
C) The party has not used home remedies.
D) The party has not lost work.

Question 66

Alternative dispute resolution

A) is seldom successful.
B) is growing as an alternative to trial.
C) does not work in family disputes.
D) is expensive.

Question 67

How can a video camera help in preparing for settlement?

Question 68

Which of the following agreement forms requires the review and approval of terms of settlement by the judge?

A) Release
B) Settlement agreement
C) Consent decree and order
D) Stipulation and order for dismissal

Question 69

Rules for mediation arise from

A) state rules of procedure.
B) Federal Rule 38.
C) the court.
D) the participants.

Question 70

In settlement, the defense

A) never proposes a settlement.
B) only reacts to the plaintiff's request.
C) seldom prepares a settlement brochure.
D) normally signs the release from liability.

Question 71

Describe the usual setting and participants for a pretrial conference. List four of the summaries the paralegal should prepare for the attorney for the pretrial conference.

Question 72

Describe med-arb.

Question 73

What are the ethical concerns of a paralegal discussing settlement with a client?

Question 74

What is court-annexed arbitration?

Question 75

Ethics guidelines for mediators are contained in

A) the ABA Model Code.
B) Federal Rule 18(b).
C) the Model Standards of Alternative Dispute Resolution.
D) the Model Standards of Conduct for Mediators.

Question 76

Which of the following does not relieve pressure on our court systems?

A) Arbitration
B) Adjudication on the merits
C) Mediation
D) Settlement

Question 77

Why is it important to have the client sign an authorization for the attorney to settle?

Question 78

A trial de novo is a

A) trial as if no previous hearing or arbitration had been held.
B) trial before a novice judge.
C) form of arbitration.
D) mock jury trial to assess one's case for settlement.

Question 79

What are the advantages of settlement over trial?

Question 80

The plaintiff's settlement brochure should include

A) the plaintiff's history of frequently filing injury lawsuits.
B) the medical history of the defendant.
C) motions and pleadings.
D) facts supported by evidence.