Why go to a settlement conference? A settlement conference may result in either a full or a partial resolution of your case. A full settlement results in certainty of outcome whereas a trial may result in you either receiving totally your desired outcome or much less than what you desired. Also, if the matter can be settled, you don’t not have to pay the additional cost of an attorney’s trial time and the other expenses involved in trying the case, which can be substantial. Even in cases where there is a contingent fee to be paid to the attorney, there are expenses for subpoenaing witnesses, paying experts, taking depositions, and other trial-related expenses. Add to that, the costs associated with taking time off from work for trial preparation and to attend the trial. Taking a case to trial is often very stressful as we have many times seen clients become anxious in anticipation of and during the trial proceeding. We encourage our clients to do breathing exercises as well as physical exercises to reduce anxiety. For those who become very anxious about going to trial, in addition to attempting to reduce stress as described above, we strongly recommend counseling with social workers, psychologists or psychiatrists, which also involves an expenditure of time and money. As yet another example of the benefits of attending a settlement conference, if a settlement is reached there will be one less litigation on the Court’s calendar which thereby enables judges to devote more time to those cases that cannot be resolved at a settlement conference.
What happens before and during a settlement conference? Settlement conferences are ordered by the Circuit Court and also, but less frequently, by the District Court. Litigants are ordered to appear for a settlement conference on a specific date and time and it is mandatory that their attorneys appear as well. Any settlement must be made voluntarily and knowingly and without coercion. Prior to the conference, each attorney, with the input of his/her client, prepares a pretrial statement. The opposing attorneys then contact each other for the purpose of merging their respective pretrial statements, thereby creating a “joint pretrial statement”. In the circuit courts, this joint pretrial statement is usually submitted a week or two before the settlement conference. At the district court level, the process varies and there is no pretrial statement prepared unless the parties agree to do so.
The presiding judge is called a settlement judge and often he or she has experience in the area of the law being litigated. For example, for a personal injury case, a judge will be assigned who has experience judging cases involving auto accidents, slip-and-fall accidents, and other cases in which a party has suffered a bodily injury. In a family law case, the judge will have experience in hearing family law disputes. For other matters, the administrative judge will assign a judge for settlement purposes who has the most experience in the specific area of the law under litigation. Although this may not happen in all cases, some judges, prior to becoming settlement judges, were lawyers who had previously tried cases in the area of litigation before them for settlement. At the settlement conference, typically the judge will ask what the last offer of settlement stated or demanded is and what, if any, counteroffer has been made. If an offer and counteroffer has already been made, the judge will assess whether or not the parties are very far apart, which often is the case. The settlement judge may then suggest that the plaintiff and plaintiff’s attorney remain in the conference room and that the defendant and defendant’s attorney recess by leaving the settlement conference room and going into the hallway. In certain instances the judge will only speak with the plaintiff’s attorney in the absence of the plaintiff. The judge will review the court’s file and ask questions about the case. During such a discussion, the judge will focus on the issues and, after having become familiar with the case, will make recommendations to the plaintiff’s attorney. At this point the judge may have the plaintiff come back into the settlement conference room to further discuss resolution of the case. Then, in the presence of the attorney and the plaintiff, the judge may recommend potential solutions and seek to have the plaintiff and the attorney consider the recommendations. Thereafter, the judge will ask the plaintiff and his or her attorney to leave the settlement conference room and to wait in the hallway while the judge talks with the defendant and his or her attorney.
The process continues following the discussion above as to how the judge attempts to resolve the issues. At this juncture the judge may describe to the defendant the offer that the plaintiff is making and will ask the defendant’s attorney whether the offer made would be acceptable to the defendant. Often, the defendant will not accept the offer and the defendant then makes the plaintiff a counteroffer. Thereafter, there are negotiations back and forth that occur jointly before the judge or separately between the judge and the plaintiff as well as the judge and the defendant.
Let's assume that the case is resolved with a full settlement of all issues in the litigation. The judge will either ask each attorney to qualify his client or the judge will ask the questions to qualify each party. Qualification questions include the following: (1) Are you under the influence of any alcohol or drug? (2) Are you seeing a counselor or physician that would in any way affect your ability to make a free and voluntary and knowingly acceptance of the settlement? (3) Has anyone coerced you, threatened you, or made promises to you in order to settle your case? Assuming that each party responds appropriately, the case is then settled.
Fred Antenberg is an attorney in Columbia, Maryland, providing legal services to clients in Howard County and the surrounding counties in Central Maryland. Fred has participated in settlement conferences on behalf of his clients for over 30 years. Call Fred to receive a free initial consultation at 410 730-4404.