Category Archives: Settlement


I have been a fan of Roger Dawson for many years. See: I have read most of his books about sales and negotiation. I have attended his lectures. His ideas about communication, persuasion, sales and negotiation make a great deal of sense to me. Dawson was born in England and then became president of one of California’s largest real estate companies. Since 1982 he has been a full-time speaker and writer regarding sales issues. Here is a brief summary of some of his ideas regarding negotiation:

  1. Act dumb, not smart. When you do that it tends to defuse the competitive spirit of negotiation. You also have the advantage of learning more than if you act smarter than the other person.
  2. Always congratulate the other side. When you’re through negotiating always credit the other side with the  winning outcome. You want the other side you feel good about what happened. It avoids after settlement controversy and you are likely to encounter the same person again. You don’t want them in frame of mind where they are looking for a way to pay you back.
  3. Always get the other side to commit first. The reason is that their first offer may be better than you expect. It also gives you information about for you have to tell them anything.
  4. Never say yes to the first offer. For obvious reasons you need to explore the extent to which the other side is willing to go.
  5. Always act shocked at the offer. Good negotiation skills are like playing poker. You do not want to reveal your hand by the way in which react.
  6. Remember the tactic of higher authority. Always have a higher authority in negotiation  that you need to clear with before making a deal. It can be your client, your partner, or someone else, But you need to be able to say that before you can accept an offer you need to clear with someone in a position higher authority in order to be able to have our negotiation. The police have used “good guy – bad guy” tactics in interrogating. It’s a similar psychology where one person is friend and the other is the unreasonable one to ingratiate better attitudes.
  7. Project the reluctant buyer attitude. You will not get the best off when you demonstrate and over eager interest in offers or settlement.
  8. Never offer to split the difference.Splitting the difference doesn’t mean down the middle because you can do that more than once. Encourage the other person split the difference only when it is to your advantage.
  9. Time pressure is important in negotiation. It has been well established that in general 80% of the progress in the negotiation occurs within the last 20% of the time left for negotiation. That’s why you should have inflexible time limitations allowed for negotiation.
  10. Be on guard for nibbling. Nibbling is the tactic of adding terms after the deal has been made. We are most vulnerable when the negotiation appears to be over. We’re feeling good because the pressure and tension of negotiation is over. The defense lawyer waits until that time and says “of course we will want a confidentiality agreement.” That’s nibbling. You think to yourself: “oh no, I don’t want to reopen the negotiation again and risk losing the whole deal we just made.” So, you give in. Big mistake. guard against nibbling.


Over the past 25 or 30 years my policy was to reject confidentiality as an imposed condition of settlement. Our settlement agreement memorandum contained the following language:

“Neither the plaintiff nor his or her attorneys agree to any secrecy confidentiality restrictions regarding any aspect of this case or settlement. It is understood that nothing shall be considered secret or confidential regarding this case or settlement.”

Over the years I have been questioned regarding this policy not just by defense attorneys and insurance companies, but plaintiff attorneys who expressed issues about ethics, duty to client, and other matters relating to my policy. I have responded that the evil of secrecy regarding settlements as a condition imposed by a defendant or insurance company outweighs other issues. We  owe fighting secrecy  to public safety.

What brings this to my mind  is a May 17th article in the New York Times regarding the number of lawsuits brought against General Motors for a safety defect linked to some 13 deaths. The article says that a review of internal documents, emails and interviews paint a picture where their legal department with increasing urgency stepped up efforts to keep the facts secret. GM declined to make key people available for interviews and after the recall began senior executives  resigned or left the company.

The editorial says  that to avoid a top engineer being deposed in a lawsuit GM lawyers suddenly settled the case with a secrecy agreement.The day before the engineer was to be deposed , GM’s lawyers offered to mediate and settle the case and met the plaintiff’s  demands, but on condition of confidentiality.  It was the fifth confidential settlement made by GM in fatal accidents involving vehicles equipped with defective ignitions.  Transportation Sec. Anthony Foxx is quoted as saying about GM’s unwillingness to share information: “literally, silence can kill.”

On Sunday the New York Times published an editorial entitled “Secrecy Kills.” The editorial says that for more than a decade GM was aware of the faulty switches that caused cars to accelerate suddenly and deactivate your bags. But, the company kept the dangers hidden from regulators and from the public by reaching legal settlements with families that were conditioned on the families keeping silent. In at least one case involving a fatal crash, the court helped make such secrecy possible with an order sealing records the editorial says.

The editorial says that Sen. Graham, a Republican and Sen. Blumenthal, a Democrat introduced a bill which would require federal judges to consider tje public’s interest before sealing court records in civil actions or approving settlements in cases involving public health and safety. One of the sponsors said: “By sealing court records of lawsuit settlements that show serious safety defects, judges are aiding   and abetting more deaths, injuries and danger.”

The editorial points out that 10 years ago GM had been secretly settling scores of cases involving including side mounted gas tanks at the same time it was publicly denying  any safety concerns about the matter. It says secret settlements allowed Firestone to hide information about tread separating from tires over a long period of time. Secrecy has also delayed removal of hazardous toys and prescription drugs from the market the editorial says.

I recall clearly a settlement I made years ago involving the Bjork-Shiley heart valves that first began to be used  in 1978. The problem was  a defective weld on the support that kept the metal valve in place. They would break, float free and block heart function causing death in most cases. When I negotiated the case of the death of  my client the company was insistent on a confidentiality clause. It turned out they had settled many cases all with confidentiality clause so problem was hidden. I refused and ultimately they reluctantly settled  without the clause, I assume  on the basis trial publicity would be more harmful then my disclosing the case facts. I kept the valve  they removed from the client’s heart at autopsy and mounted it. I kept it at my office as a visual reminder  of the evil of secrecy when it conceals product defects that represent a  public danger.



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

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