Did you know that in a civil lawsuit here in NY, during a pretrial conference, if the parties are not prepared for settlement discussions, the judge has the ability to dismiss your case?

It's true.

Weeks before the attorneys are scheduled to appear in court for pretrial conference, the court sends out a letter to each of the attorneys involved in your case.

That letter is very straightforward.

That letter is clear-cut.

That letter says that you better be prepared to talk settlement when you arrive in court for your pretrial conference.

If you are unprepared, the judge has the option to dismiss your case or, from a defense standpoint, to dismiss the defense's answers and claims.

That's harsh.

If the judge exercises either of those two options, that would be devastating for either side.

Why would the court send out this letter weeks before the trial conference?

The reality is that they want the attorneys to be fully prepared.

They want to know if negotiations can start and if there is a possibility for resolving this case prior to trial.

What the court does not want to happen is for one or both attorneys to show up and say that they have no idea if their respective clients wish to negotiate. If that were to happen, and it does, the court will have wasted its time and the attorneys will have wasted their time showing up in court for absolutely no reason.

Pretrial settlement conferences give the judge an opportunity to learn what the settlement demand is and whether or not the defense is willing to try and negotiate.

If the parties are open and receptive to negotiating, now the judge can enter into serious conversation with both sides to try and resolve the case during this conference.

You should be aware that simply because the parties are agreeable to try and settle, does not mean that the case will be settled.

Based upon the success or lack of success by the judge during his pretrial conference, the judge may require the attorneys to return to court soon afterward in order to continue their discussion and ongoing negotiations.

If the parties are unwilling to negotiate and the defense claims this is a no pay case, the judge will set this matter down for trial.

I have been in practice for 26 1/2 years and have never yet seen a judge dismiss a case because one attorney was unprepared to discuss settlement negotiations.

That does not mean it has not happened, simply that I've not observed it.

To learn more about this topic, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer