CHOOSING A SYSTEM OF PROCEDURE (Judge’s role, different models):
counsel agrees to represent client for fixed percentage of the net
whatever’s recovered by either settlement or trial.
Incentive on both sides to settle early to obtain
fewer sunk costs.
Reflects view that people should have access to courts.
other side’s attorney fees.
(English model, Part of Bush’s Tort-reform package).
large effect on access to courts—bringing suit has large risks.
Band’s Refuse Removal, Inc. v. Borough of Fair Lawn
, NJ 1960
Trial judge below committed
by favoring one party; abandoned his
role as neutral arbiter and finder of fact/law and became an advocate.
communication to a represented party w/o their representation, NOT OK.
Mandates that as soon as practical, or at least 21 days before trial(?) parties
must meet regarding nature and basis of claims and possibility of settlement.
must also arrange for mandatory disclosure of all relevant documents, witnesses and how
to find them, information on how damages were computed, any insurance agreement.
Receipt of info. by the court leads to Rule 16 conference—controversial b/c judge learns
a lot that could be prejudicial.
So, option of settlement hearings in front of a mediator.
In a pre-trial/settlement conference, judge will look at presentation of issues,
narrow some, stipulate rules as to evidence and facts and streamline trial.
Mechanism of the
π agrees to take a
(w/ agreement of
(dismissal w/ prejudice so they can’t file again);
no obligation to tell court terms of settlement b/c it might become public record.
Judge in Band’s
could not have stopped parties from settling for the public interest or have
intervened if settlement amount was too high/low, b/c trial was not for the public’s interest, but
between the parties.
In Agent Orange
, judge intervened b/c of settlement amount, but it was a
Judge can’t otherwise intervene regarding the amount, it’s a party-driven system
and it’s their prerogative to over- or under-pay.
Kothe v. Smith
Pressure tactics for parties to settle, and sanctions when they fail to do so w/in
judge’s desired time-frame not allowed.
Judge’s conduct akin to German model, investigative.
Ethical Rule 76
requires that in course of settlement negotiations, counsel convey offers and
keep client reasonably informed so that she can make informed decisions.
final say on whether to accept an offer.
Must send someone w/ settlement authority, or
have someone w/ settlement authority readily/reasonably available at pretrial conference.
In case of surprise move, can ask for time to confer w/ client.