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Bloom & Buell's

SETTLEMENT OF CASES - SO YOU THINK IT'S OVER!?

Those of us in the defense bar who might be kindly referred to as a bit long in the tooth have a distinct memory of the "good old days".  In those days of yore, a cub trial attorney carried in his or her briefcase to each court he or she attended a Complete Settlement Kit, consisting of a pad of printed General Releases from the legal stationers, a similar pad of Minor Releases, and a packet of carbon paper (for those unfamiliar with carbon paper in this age of Xerography, think of it as a magic paper which allowed one to handmake photocopies).  These two pads and a packet were the sum and total of the Complete Settlement Kit.

In those halcyon days, it was not at all uncommon to observe lawyers and clients lining the courthouse hallways, using their knees and other people's backs to fill out these settlement forms.  That was all there was to it.  When the defense attorney returned from court, these "handcrafted" releases would be posted off to the carrier, and the settlement check was on its way shortly after the company received these magic documents.  It was a toss-up whether the defense attorney would get the legal file billed, closed, and on its way to the warehouse before the claims representative could do likewise.

Alas, not so today.  Nowadays, when the parties all finally decide that a settlement is the best way to go, and a figure is arrived at, thing have only just begun.  The case, once closed at this point in the blinking of any eye, now merely enters the "settlement phase", with its own legal requirements, terminology, and paperwork, paperwork, paperwork.  Consider the possibilities.

In olden times, when an injured party settled the case, the check made its way to the victim who then often treated the family to a bunch of goodies with the well-deserved proceeds.  Here in modern times, everyone in the family has at least the potential for getting his or her own check, as the parent, spouse or child of the victim.  Thus today's claims attorney has to be genealogist, running the family tree of each injured claimant and obtaining closure on all the potential or actual derivative claims.  The chances of a snag in the settlement process are geometrically increased as the relatives get pulled into the mix.  God forbid any of the possible claimants is a minor child, as this calls into play the virtually endless requirements for the protection of children.

Speaking of children, whatever happened to the assumption that if you settled with their parents and turned the cash over to Mom and Dad for safe-keeping, you were all set?  That concept is dead as a doornail, subscribed to only by a few family-values zealots.  Settlements involving kids are today a substantial contributor to the Full Employment for Un-Employed and Under-Employed Attorneys Program, as the courts appoint Guardians ad Litem, to make sure that the hard-won settlement is in the best interests of the minors.  Recently the Massachusetts legislature amended our statutes to allow Superior Court judges, in cases before them, to appoint full-fledged guardians and otherwise act as if they were sitting in the Probate and Family Court.  Of course, that particular statute creates as many problems as is supposedly solves, since there really is no system in the Superior Court for the statutory notice requirements and ongoing reporting requirements mandated for guardianships, and the statute is silent on these salient issues.  Then, of course, there is the Petition for Approval of the Settlement, to be presented to the court.  An interesting document indeed, as each side learns for the first time why the case settled for so little (or so much) money, since both parties must explain why in great detail, and euphemisms only carry one so far.  What this lawyer then still must face is what to do when a settlement falls through after both sides have washed all their linen publicly in the Petition.

There are many other issues that may crop up in the "settlement phase".  Defense counsel now have to do a sort of Mental Status Exam on the parties to the settlement, since heaven forbid you should accept releases from a lunatic, who would sue again once sanity returned.  And, as much as parents are no longer presumptively good guardians for their children, even more so does one have to scrutinize the credentials of anyone serving in a representative capacity.  Just recently our Supreme Judicial Court found that a decedent's daughter, who was named as his only heir in his will and held voluntary administration papers from the Probate Court, had no authority to settle a death claim in the decedent's behalf.  Instead it awarded that honor to the decedent's estranged wife, who showed up for the first time two years after the settlement was over and the funds were dispersed.

Those of our readers who don't get themselves involved much in settlements should, number one, thank their lucky stars, but secondarily, perhaps, gain a little insight and develop a little sympathy for those of us who are in the thick of it.  By the way, this tale of woe does not begin to recite the list of issues raised nowadays about settlements.  Did we mention the headaches surrounding Structured Settlements?...