You're not sure if you will have to go to trial.
The defense has not given any indication whether they are interested in trying to settle your case.
One day, your attorney tells you he is scheduled to go into court for a “settlement conference.”
You ask “can I go with you?”
“Why not? It's my case. Why can't I go into court with you and learn what happens?”
The reality is that you could go into court but would wind up sitting in the courtroom or waiting in the hallway while your lawyer goes into the judge's conference room.
That seems counterintuitive, doesn't it?
Since the conference will be about you and your case you might think that it would be important for you to sit in and participate.
A settlement conference is designed to get all parties to the lawsuit together to try and negotiate and resolve your case. If you were there in addition to the people you have sued, tempers would flare and everyone's objections, opinions and feelings would get in the way of having true negotiation discussions.
On any given morning, the trial judge will have to deal with and see lawyers and cases from 10 to 50 cases in just one morning. That's a lot of people to talk to and not a lot of time to do it.
Most experienced trial attorneys will reach out to their adversaries before such a settlement conference to get a heads up and get some idea about what the defense's settlement position is before arriving in court. This way, they have some idea about what may happen during this conference.
“Hi John, I'm trying to find out what the insurance company's settlement posture is before we head into court for our pretrial conference.”
“The carrier is still evaluating the case,” replies the defense lawyer.
“I have been authorized to offer some money, but we're not there yet,” the defense lawyer says with some hope the case can be resolved without going to trial.
“We cannot resolve this case and will have to go the trial,” the defense attorney says with finality.
“The insurance company doesn't feel your client's injuries are that significant and they're not going to negotiate until you become more realistic in what you will accept.”
WHAT HAPPENS NEXT
Depending upon how long your case has been on the trial calendar, the judge may ask the attorneys to return in a few weeks or a few months if there is a possibility the case may be settled prior to trial.
This is designed to encourage settlement negotiations and to continue the discussion if there is a chance your case might be resolved.
If the judge is able to determine during the settlement conference that there is no hope of settlement, a definite trial date will be set and all parties will begin preparations for battle.
Lawyers who appear for a settlement conference must be fully versed in the minute details of your case.
Discussions about liability, who caused the problem, as well as causation and the extent of your injuries, are discussed in detail.
The New York court rules and regulations require that only attorneys who are familiar with the case and have authority to settle the case are permitted to appear for such a settlement conference.
There is a specific reason for this.
The court does not want to waste everybody's time by having lawyers who are not familiar with your case and not capable to negotiate your matter appear in court for a settlement conference.
Assuming a settlement offer is made by the defense, one of two things can happen at this conference.
If your attorney knows beforehand and has discussed settlement value with you prior to this conference, it is possible that he can settle this matter on your behalf during this conference.
If however this is the first time a settlement offer has been made, then your attorney has an ethical obligation to discuss that offer with you before making a final decision.
Your attorney's goal is to provide you with the best legal advice about your risks and chances should you proceed forward.
It is your ultimate decision about whether or not to accept a settlement offer.
Should you choose to accept a settlement offer, the best practices recommendation is to do so in open court and have the settlement recorded by a court stenographer.
However, many times that is not feasible.
In that instance, the attorneys will draw up settlement papers that must detail and lay out exactly what claims you are settling and for what amount of money.
Now you know what goes on behind closed doors when your lawyer is going to appear for settlement conference on your case in the State court system here in New York.