It happens once in a while. The defense wants to negotiate. They make a very good settlement offer. The client decides it's not acceptable. What happens next?
First, it's important to realize that any time a settlement offer is made, I am ethically obligated to tell you about it. Regardless of whether it is a good offer or not. My first obligation is to let you know about the offer.
My next obligation is to give you my professional opinion about whether the offer is good or bad. I then have an obligation to explain to you the risks and benefits associated with either accepting or rejecting the offer.
As an injured victim who has brought a lawsuit, you have the final say in whether to accept or reject a settlement offer.
If you reject the settlement offer, I then contact the defense attorney and let him know that the offer is not acceptable and then try and continue the conversation to see if there is further room to negotiate. Sometimes there is and sometimes there isn't.
If a settlement offer is accepted, there are certain papers that you will be required to sign to confirm your understanding and your acceptance of the settlement. These documents include a “general release,” and a "stipulation of discontinuance." There is often a request for you to sign a document called a “hold harmless agreement” as well as a “no publicity agreement.”
A hold harmless agreement is a document that says in the event you are obligated to pay, let's say Medicaid or Medicare, and you do not do so, if those governmental agencies come after us seeking payment, then you promise to pay us back and reimburse us for those monies.
The no publicity agreement is often made to prevent other lawyers and injured victims from learning about how much a particular case was settled for.
Often, an insurance company will not settle a case unless this provision is signed. Many injured victims have a burning desire to publicize the wrongdoing that occurred. Once they sign a non-disclosure agreement, they are now prevented from ever publicly disclosing the facts of the case along with the settlement amount.
TO TRIAL WE GO...
If you reject a settlement offer that I have recommended, and the defense refuses to negotiate further, then we would have no choice but to proceed to trial.
If we are at trial and a good settlement offer is made and you reject it, there is a very good chance that I will ask you to take the witness stand, after the jury has been excused so that I can ask you specific questions and put on the record your understanding of the settlement offer as well as the risks associated with proceeding forward to a jury verdict.
This is done to protect you and me. By doing this, you testify under oath that you are fully aware of the settlement offer and you have made a decision to reject that offer. You will also be asked whether you fully understand the risks that you may receive less or nothing by proceeding forward to verdict.
Doing this will ensure that there is never a situation where the jury comes back with less or nothing and you turn around and say “But I didn't know I could lose my case and get nothing.”
When a settlement offer is made, it's a great opportunity to sit down with you and go through all the different possibilities that can occur in the case. Only then can you make an educated decision about whether this settlement offer is right for you.
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