Civ
Pro 2 Notes
Settlements
There
are lots of factors that go into determining settlement values and what makes
cases ripe for settlement. Discovery
causes reevaluation of the value of a suit.
Most tort plaintiffs lose, so settlement for them is attractive. Even if you win, verdicts may be low, and trials
are expensive. So both sides have
pressure to settle if possible. Most
settlements are based on negotiations between the attorneys.
Jane
Smart is a botanist employed by a botany company genetically modifying
crops. There are harassment allegations
that lead to a discharge. There are
multiple stories of what may have happened.
But Jane thinks she may have both unlawful discharge claims under state
law and federal Title VII claims. The
company tries to give her money to not sue, a “walkaway” settlement. This is the easiest way to make sure you get
sued for malpractice. If you pay someone
not to sue but then they turn around and sue anyway, then you yourself will
turn around and sue the lawyer who recommended the “walkaway” settlement. So you want to do this in the form of a
release. This has its problems,
too. The release is only as good as its
language. If the release is “in full
settlement of civil rights claims against defendants”, then you haven’t necessarily
released the unlawful discharge claim.
What about “in full settlement of any and all claims, known and unknown,
whether based on federal, state, or other applicable law, arising out of my employment”? That’ll do.
Voluntary
dismissals are one way to execute a settlement agreement, but the problem is
that this dismissal is without prejudice, meaning that they can file the
lawsuit later. Maybe you could get Rule
41(b) involuntary dismissal which would be with
prejudice. Claim preclusion will then
kick in and preclude whatever such a judgment on the merits would have covered. If you want more action on the part of the courts, you can ask for a consent
decree, which is, in essence, a court order.
All
four settlement scenarios described above have their advantages and
disadvantages. Some will be quicker than
others. For example, if you have to deal
with a consent decree, you’ll have to invoke the jurisdiction of the court. Some will be more confidential than
others. And some will be more enforceable
than others. But usually no one type of
settlement will have all the answers.
Matsushita
Elec. Industrial Co. v. Epstein
There’s
a