The defense attorney calls me.

He would like to make an offer to settle your case.

He tells me that the insurance company has discussed your case, they have fully evaluated it and now they would like to try and settle.

He offers $1 million dollars.

Can I tell him, right then and there, that you will accept that offer if I have not spoken with you and gotten your permission and authorization to settle your case?

At first blush, you might think that an attorney who speaks on your behalf has the right and ability to say yes.

You might think that your attorney, acting in your best interests, while still on the phone with the defense lawyer, can say yes.

Let me open your eyes and tell you that under no circumstance can a lawyer in New York ever settle a case without his client's consent and permission.

From an ethical standpoint, an attorney is prohibited from ever settling case without his client's consent.

It doesn't matter how much or how little is offered by the defense attorney.

Best practices require that when a settlement offer is made, I will typically thank the attorney for his offer and let him know that I must discuss it with my client first.

If I feel the offers insufficient, I will bluntly tell the defense lawyer that I don't believe this offer is sufficient and that my client will likely not accept it but, I have to talk to him to see what he would like to do.

After getting off the phone with the defense attorney, I will then call my client. I will then let my client know that the defense has just made a settlement offer and tell him how much money they offered.

The next step is to have a detailed conversation with my client about the risks of going to trial compared to settling this case.

Only after a detailed and thorough discussion about the pros and cons of accepting the defense's offer and giving my recommendation about whether I believe the case should be settled or not, can my client make an educated decision about what needs to be done next.

There are many instances where we will formulate a negotiation strategy based upon this initial conversation.

One strategy may be to counteroffer.

Another strategy may be to simply reject the defense's offer without making any counteroffer.

Another strategy is to accept the defense's offer.

As an injured victim who has brought a lawsuit, you have the ultimate say in whether to accept or reject any settlement offer.

You will find that the best and smartest trial attorneys in New York always follow best practices and have a detailed and thorough discussion with their client any time a settlement offer is made.

Only after having this discussion can you, the injured client, make an intelligent decision about what to do next.

You should also know that simply because the defense has made a settlement offer does not necessarily mean that the case will ultimately settle.

Their offer may be inadequate.

There may be other terms they want in addition to the settlement offer that you may not be agreeable to.

You might want to publicize the details of your case and the settlement amount. The defense may have a different idea and as part of the settlement terms want you to agree to no publicity.

An attorney in New York has an ethical obligation to inform his client about any settlement offer.

You should also know that there are some instances where I will recommend that my client not accept a settlement offer and yet, for their own reasons, choose to accept it.

On the other hand, there are instances where I recommend accepting the defense's offer and my client chooses not to do so.

To learn more about negotiation strategies as it applies to civil lawsuits here in New York, I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer