It didn’t take me many mediations or settlement conferences to figure out that if I didn’t get  it in writing when the deal was made there would be problems. Call it buyers remorse or just lawyers being lawyers  there would be proposed revisions and issues raised we never discussed or had already resolved. If you allowed the other side or the mediator  to try to put the deal in writing it took too long and it opened the door to further discussions. As a result I prepared a form memorandum with copies that I had with me. As soon as there was verbal agreement I  would take the position it  wasn’t settled until the parties had signed my memorandum. This presented the other side with a written form that could be altered but only in writing and which prevented after thought controversy.

What follows is a basic memorandum which would have to be revised for whatever might be needed in your practice or jurisdiction, but which is simple, covers the major points and excludes after deal dickering. We have actually filed motions to enforce these memorandums on occasions when the defense wanted to back off of something or change it. Also, this form has no provisions  for  issues under Medicare, ERISA, Obmacare or specific lien or subrogation claims.  These would be added as needed.


The parties have agreed to settle this case on the following terms.  Settlement documents in conformance with this agreement will be prepared and signed by the parties in conformity with these provisions which are final.

1.         DEFINITIONS

1.1       “Plaintiff” refers to the persons claiming damages in this case. “Defendant” refers to the persons or legal entities against whom the claims are made.

2.         AMOUNT TO BE PAID 

2.1       Defendant shall pay plaintiff, in full settlement of all claims, the sum of



3.1       This is a lump sum settlement to be paid by check or draft.

3.2       The check or draft shall be made payable to “Luvera, Barnett, Brindley, Beninger and Cunningham, in trust for $                                                                                   

3.3       The check or draft shall be deposited in an interest bearing trust account (Tax ID xx-xxx-xxxx). No disbursement shall be made until the final release documents are signed and any required court approval has been obtained. 

4.         TIME OF PAYMENT 

4.1       The check or draft payable upon deposit shall be delivered to plaintiff’s attorneys within ______days from the date of this agreement. It is understood this payment shall be made with the understanding there will be additional   release documents including orders of dismissal at a later time.  twelve percent per annum interest shall apply from the date of the money should have been available from the date of the agreed delivery of the check or draft.

4.2       Defendant agrees to deliver to plaintiff’s attorneys all release or other settlement documents within ________ days of the date of this agreement.


5.1       Neither the Plaintiff(s) nor their attorneys agree to any kind of  secrecy or confidentiality regarding any aspect of this case or settlement.

5.2       Plaintiff clients or the Guardian or Personal Representative will sign release documents and an agreement to hold defendant(s), their insurance company and attorneys harmless from payment of subrogation or liens in connection with this case, but reserving to them the right to negotiate settlement for less then the amounts claimed.  No one will be released except the defendant(s) who are a party to this agreement and their named agents or employees. The release documents shall only apply to the parties signing this agreement Any additional claims of plaintiff are hereby reserved to all other persons or entities.

5.3       The language of the release documents shall conform to the terms of this settlement agreement which contain all of the agreed terms of settlement. No other provisions shall be added to the final release documents that are not specifically set out in this memorandum.  This is a mutual release of all parties to this agreement.  Defendant also agrees to release any and all claims defendant has against plaintiff arising from this incident.

5.4     If minor child or other court approval is required, plaintiffs agree to be fully responsible for the approvals required. It is agreed that if such approval is required plaintiffs attorneys will retain the settlement monies in their trust account until such approval is approved.

5.4  Other provisions:________________________________________

Dated this ___day of ____20____

Plaintiffs                                                                                              Defendants

______________________  ______________________________


Philip N. Meyer is a professor  of law at Vermont Law School.  He Emailed me about a book he has written, Storytelling for Lawyers published by Oxford Press. I have not had the opportunity of reading his book, however the table of contents shows a comprehensive list of subjects about storytelling. I recommend any well written book on this important  subject.

Clearly storytelling is an essential tool for trial lawyers.  The  Spence  Trial College teaches storytelling Learning  how to tell stories about the facts of a case is a tool every lawyer needs. I’ve spent some time studying script writing as a means of  learning about storytelling. My wife and  I sponsored an informal class  with actor Tom Skerritt and other  professionals from the Seattle Film School for a small group of trial  lawyers &  friends because of the importance learning how to create and tell stories. I’ve published before on this subject, but Professor Meyer’s new  book inspires me to post about it again.

Why Storytelling? 

None of us need to be reminded that the way to capture attention with children or adults is through storytelling. Lately literature about the skill of trial has been full of articles about becoming story tellers in trial. It is not just Native American culture that traditionally was oral. All mankind’s history has involved storytelling.  Alex Haley in Roots reviewed the African oral tradition as well which has many similarities to the Native American. Scripture is replete with examples of storytelling as the chief means of communicating. We were brought up with storytelling either by our parents or in the books we read or the old radio programs and now by television or the movies. How many times have we heard someone say “did I ever tell you about the time…”?

Some therapists believe that listeners routinely enter a trance like state when listening to a well told story. This has been explained as being mesmerized by the unfolding story. People suspend outside awareness and concerns as they focus on the story. This allows them to be touched at the deepest level resulting in emotional responses including even tears. Story telling is a powerful tool.

Why are stories so compelling? Look at the parables of Jesus in scripture which are in story form. We see that one important fact about this form of communication is that they always make truth concrete. It is difficult to grasp abstract ideas. Most people think in pictures. Parables make truth into a concrete picture people can see and understand. Further, all great teaching begins from the here and now in order to get to the three and then. If you are going to teach about things people don’t understand you need to begin with things they do understand. Parables involve things every person understands from their own experience and from there lead to things which they need to understand. Most important, parables compel our interest because they are stories. The surest way to get interest is tell a story. The parables allowed people to discover truth for themselves. They all contain the question, what does this mean to you? Some things are best left to be discovered and stories allow you to create that in the listener. Note also that the impact on the people hearing the parable was immediate. It was spoken not read. It made truth flash upon a person with immediate truth. But also note that parables only had one point to make. They were simple and they were very understandable.

Throughout history we have communicated our heritage by telling stories and singing songs. While today we may not tell stories sitting cross legged in front of a fire or around the kitchen table, we pass on our visions and ideas from generation to generation by written stories, radio, television and movies all by storytelling. 

Gerry Spence emphasizes story telling at the Spence Trial College. He has argued that the most important trial technique is to transfer one’s case into a story because people are used to storytelling and because it is an effective technique of persuasion. Your client’s story should be featured in all aspects of the case: jury selection, opening, direct, cross and closing. It is in the repetition of your client’s story that will persuade the jury.

In an article published in the American Bar Association Journal April 1986, Spence wrote:

“Of course it is all storytelling – nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening, the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence…The jury wants to hear a story. They’re hard wired for it.”

The importance of storytelling in human understanding is underscored by the high intensity of communication. We must simplify and communicate in ways that will be heard in order to get through all of the information being thrown at us daily. Peter Large in The Micro Revolution Revisited says more information has been produced in the last 30 years than in the previous 5,000 years. About 1,000 books are published internationally every day and the number of books in top libraries doubles every 14 years.

Since words alone play such a minor role in communication we need to think in terms of storytelling for full impact. We know that what is said counts for only part of what is understood. Our vocal message (inflection, resonance etc) accounts for a  large portion of the understanding. But, a very important part of the understanding is nonverbal. Therefore, storytelling is of great importance in our efforts to persuade.

Storytelling simplifies and focuses attention for the listener. When people receive random, unstructured information they become anxious and soon stop listening completely. This happens when information does not tell us what we want or need to know. Henry David Thoreau said it takes two people to speak the truth – one to speak and another to hear. What counts is not so much what is said, but rather what is heard or thinks was heard.

Albert Einstein has rightly observed that “imagination is more important than knowledge.” Since a trial is a war of impression and not logic successful trial lawyers must become masterful story tellers who engage jurors on a visceral level with the magic of storytelling. It is at that level people decide all important issues and reach opinions.


Poulsbo is a quaint town of about 9500 people and a drive of about one hour and a half from Seattle. It’s a Scandinavian seaport fishing town located right on the salt water.

In 1983 I received the “Small Town Lawyer Made Good” award from the Poulsbo Bar Association. The award was the brainchild of  Paulsbo lawyer Jeff Tolman. As I recall, the Poulsbo Bar Association had approximately 13 members at the time. However, Jeff had created this award and then was successful in talking some nationally known people to travel to Poulsbo to receive the award and participate in the daylong seminar as well. The guests who agreed to show up included several members of the United States Supreme Court, Gerry Spence and local lesser-known lawyers like me. Lawyers came from all over the state to attend the seminar and listen to the person Jeff had induced to come to Poulsbo.

I bring this up because it represents to me a picture of what a lawyer should represent.  Here was this creative  lawyer  in a small  town  who  managed to  establish  a seminar  involving  some  prominent  people  who were willing to travel  in some cases a great distance  to participate  in  a gathering of  other lawyers . Everyone had a good time and it was educational as well. He had done some important good work for the community and the bar. So, I got to thinking about lawyers and what they should be like. Here are some rambling thoughts.

Some years ago there was an article in the Alaska Bar newsletter written by an Alaska lawyer about why he became a lawyer.  He said that his father was a lawyer and that he would, on occasion, go to court to watch his father. One time he was there during a trial against another lawyer who was disliked by his father and the feeling was mutual.  The other lawyer had cross-examined a witness and as he came back to counsel he leaned over and said to his father in a stage whisper:  “How did you like that, you little pissant.”  His father reached up, grabbed his opponent by the necktie, pulled him to the table and the two of them begin rolling around on the floor while the judge was banging his gavel.  He said: “That’s when I knew I wanted to become a lawyer.”

One description of the role of a lawyer is to: “comfort the afflicted, and afflict the comfortable.”  Some people see the role of the lawyer like the story about W. C. Fields, the famous comedian of the 1930s who was a well-known atheist.  One day someone saw him reading the Bible and asked him why he was reading the Bible.  He said: “looking for loopholes, looking for loopholes!”

Many years ago I participated in seminars about law office management with a number of lawyers from around the country.  One of them was Harris Morgan from Greensville Texas. Harris spoke about attorney fees. The story he would tell was that his father was a lawyer and that as a young man he would work at his office.  He would overhear his father talk to clients about the fee. He said his father would tell the client: “Mrs. Smith I’m so delighted that you have enough confidence in me to hire me as your lawyer.  I intend to do the very best I possibly can for you. However, there is one thing you should know about my limitations.  I can only concentrate on one thing at time.  Therefore, we need to talk about the fee so I won’t be distracted while I’m representing you.” Harris would use this story to emphasize that it was essential the lawyer brought the fee up first, had a clear understanding about the fee and costs and confirmed it in writing as well.

As to fees, the famous Texas criminal defense lawyer Percy Forman was fond of saying: “I never charged a client more than he had.”

One thing I do know about being a trial lawyer is that if you want to be loved, find another field of practice. It’s not your role to please other people, be loved by your opponent or the judge. It is your role to do the very best for your client you are capable of doing within the rules. As Harry Truman has said, “if you want a friend in Washington, buy a dog.” If you want to be loved as a trial lawyer, buy a dog.

I realize there’s little here that is helpful, but I thought I’d pass it on anyway. Next time I’ll use something practical.