You've brought a lawsuit.

Against your doctor.

For medical malpractice.

You believe your doctor was careless.

You believe his carelessness caused you permanent harm.

Your doctor disputes your claim.

He says he did nothing wrong.

He says your injuries were not caused by anything he did or didn't do.

He also claims that your injuries are not that bad.

The defense refuses to negotiate.

This is a 'no pay' case, they say.

That means your case will go to trial.

Two years of litigation and the defense won't budge.

Your attorney prepares you to testify at trial.

Your lawyer is gearing up for trial.

You now have a definite trial date.

The judge tells the attorneys to start jury selection on this date.

Four weeks before trial, the defense reaches out and wants to know if your attorney is willing to negotiate.

It's a wake-up call.

You can't believe it.

They finally woke up and realized that maybe it's the right time to start negotiating.

You're pleasantly surprised.

Maybe your case won't go all the way to trial.

Your attorney does not have high hopes.

He thinks they're playing for more time.

He thinks it's a delaying tactic.

He also thinks they want to get a feel for where you are and if this case might settle.

Your attorney is willing to listen to the defense and feel them out and get a sense of where they are.

Your attorney wants to see if they're really serious about trying to settle your case.

However, your attorney doesn't believe he'll get a straight answer from the defense lawyer.

He thinks he'll have a better interaction with the trial judge.

He thinks the trial judge will be able to put pressure on the defense to get a good sense of where they want to be if they're serious.

You agree.

You trust your lawyer.

It sounds like having the trial judge there to run interference between the two attorneys is a good idea.


You want to join the conference.

You want to be in the room when your lawyer is talking to the judge.

You want to be in the room when the defense attorney is making his pitch to the judge.

You want to make sure that everything is on the up and up.

You want everyone to know that your input is vital to any settlement agreement.

You're not going to simply roll over and accept whatever is offered.

Nor do you want to rely solely on second-hand information from your attorney.

  1. Can you participate in your settlement conference?

  2. Will the judge allow you to be present in his private chambers during settlement discussions?

  3. Can you listen in when the defense attorney talks to the Judge?

Let me answer those questions in the order in which I raised them.

Can you participate in your settlement conference?

The answer is yes, but not in the way you want.

Your attorney will welcome you being present in the court house.

Your attorney will want you in the court house, for a key strategic reason.

If an offer is made, your lawyer will want to have you nearby to discuss the settlement offer and get a quick decision from you.

Alternatively, your attorney will want you available by phone to talk to you if a settlement offer is made.

Your participation is vital to the success of this settlement conference.

However, to answer the next question, can you be present in the Judge's chambers during this settlement conversation, the answer is likely no.

The judge wants to have a combined conversation with both attorneys initially.

Then, he will send out one attorney and have private conversations with each lawyer separately.

Then, he will rotate and have the other lawyer step back in.

What he's trying to do is learn where each side is.

What does your attorney want to settle your case?

The judge needs to know this.

He needs to know if he's flexibile and has room to negotiate.

If not, he needs to know that.

Then, the judge needs to know how much money the defense has.

Are they ready to offer money today?

Do they have enough to reach what your attorney wants?

How much negotiating room does the defense lawyer have?

Is there a way to get more money?


Where does the defense want to wind up if they settle this case?

The Judge is continually assessing what might be offered compared to what your attorney wants.

The Judge will likely pressure each attorney.

He'll pressure your attorney and explain there's a good chance you'll lose or a jury will give you less than you're asking for.

He'll pressure the defense lawyer and explain that you will likely win big at trial and in order to save that from happening, they better put up or shut up.

Or something to that effect.

If he can get both attorneys close enough, that might be the time for your attorney to have a hasty discussion with you in the court house hallway.

Your lawyer might tell you to join him in the hallway.

Then he'll tell you what's been offered.

He'll explain the risks, benefits and alternatives to the current offer.

Then, he'll give you his personal, professional opinion about whether you should accept or reject the offer.

He will likely recommend a counter-offer as an alternative.

However, he will need to get an answer from you about whether you agree to settle if he's able to obtain a certain amount of money during this settlement conference.

This will allow him to negotiate without him having to come out to you every few minutes to seek your approval.

Remember, it's in your lawyer's best interests and yours, to obtain as much money as possible for you.



The more money he's able to obtain for you as full and fair compensation for your injuries, the greater his attorney fee will be.

That's what a contingency fee is all about.

His fee depends on what your result is.

The more you get, the more he gets.

It's that simple.

Now, getting back to my last question...

Can you be in the Judge's private chambers when he's discussing settlement with the defense attorney?

The answer is no.

The Judge will not allow you to be present when he's having a heart-to-heart conversation with the defense lawyer.

He will not allow you to be present when he's putting pressure on the defense attorney.

You should take comfort that your participating is critical to successfully resolving your case before trial.

You need to be in court.

You need to be available to your attorney.

You need to be able to make a decision together with your attorney's advice.

Without your input and your answer, your lawyer cannot settle your case.

Another point to remember...

Just because each side has agreed to participate in a settlement conference does not mean your case can be settled.

Both sides may be very far apart.

You may need a jury to decide if you are more likely right than wrong.

To learn the 3 Things to Consider When the Defense Offers to Settle, I invite you to read this article.

To learn even more about whether to begin settlement negotiations, I invite you to watch the quick video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer