CONSIDER A SETTLEMENT CHECKLIST TO AVOID MISTAKES

I am a great believer in checklists for everything we do in the law practice. If pilots with thousands of hours of flying religiously review checklists before flying and hospitals require checklists for medical care then how is representing a client any less important. With checklists you save time repeating previous work  and protect against omitting an important step. Here is a partial checklist for the use of the paralegal in the office. Note that it relies upon the the paralegal to do a lot of the preliminary steps, uses form letters and standard language where appropriate and covers the process involved. In my practice, demand letters all had the same format for information provided as well as standard language regarding office policies such as no confidentiality and other office policy.

You’ll note there is a restriction on scheduling mediations, limiting the time allowed to half a day. That’s because,  in my experience, you should know in the first hour or so whether there is any reasonable chance of settlement  and if so you can stay longer. Plus, 80% of all progress in mediation happens in the last 20% of remaining  time allowed for mediation.

Here’s my checklist which I’ve not revised for general application.

PARALEGAL SETTLEMENT CHECKLIST

  1. WHAT TO DO ABOUT SETTLEMENT DEMAND LETTERS

If we are sending a settlement demand letter to an insurance company or defense attorney follow these procedures.

__1.     See settlement form letter. Rough out as much of the demand as is possible for the attorney to complete. Note also attachments would should be included such as copies of bills, police reports etc. Make copies or list for attorney.

(1)        BE SURE TO INCLUDE STANDARD LANGUAGE regarding our settlement policy of no confidentiality in the letter and other office policy  about settlements. This must be in every demand letter.

__2.     Client OK No demand letter can be sent until written client authority is obtained and filed.

__3.     Information needed provide the attorney the following information to before getting client authority to settle.

(1)        Costs to date & information about any unbilled costs. This includes any referring or associate attorney out of pocket costs as well as our own.

(2)        The totals due for subrogation, liens, or amounts due as reimbursement

(3)        Current totals of economic loss information such as:

(a)        Wage loss

(b)        Bills both past and future

(c)        Property damage

__3.     Use RED STAMP TITLED “CONFIDENTIAL SETTLEMENT MATERIALS”

On first page of the letter.

__4.     NOTICE Ask attorney if any of the following should get a copy of this demand:

(1)        Subrogation claimants

(2)        Labor & Industries

(3)        Welfare

(4)        Insurance company

(5)        ERISA

(6)        Other.

__5.     Client copy Always send a copy of settlement demand letter with attachments to the client. Put one copy without attachments in correspondence.

__6.     Settlement Folder Open settlement folder. Put one copy in a settlement folder. Make sure that copy has attachments.

  1. INSTRUCTIONS FOR PREPARATION OF SETTLEMENT FOLDER 

Note: The following is the procedure for opening a settlement folder in preparation of a mediation, judicial settlement conference, or other settlement conference.  It is essential that it is a complete file.

__1.     Open a letter size file folder labeled “settlement” with client’s name. IT MUST CONTAIN THE FOLLOWING MATERIALS:

  1. Settlement documents from client file: 

__2a.    Print out all settlement history from computer and put in file 

__2b.   Letters Copy of all letters between our office and insurance adjustor or defense attorney relating to settlement. The latest should be on top and arranged chronologically. Put under case summary sheet on right side of file.

__2c.   Phone calls Include under “Phone” tab on left side of file any phone message or memo dealing with settlement.

__2d.   Fee agreement Include under “Fees” a copy of our fee agreement and any associate attorney fee division letter, agreement or memo.

__2e.   Notice letters Include with correspondence letters giving notice to others of the mediation.

  1. Forms: Insert in File 

__3a.   Settlement Summary Settlements not binding unless a) in writing or b) made of record. [See Howard v DiMaggio 70 WA App 734 (1933) See CR 2A & RCW 2.44.010.] Have our settlement form confirming settlement details under tab “Settlement Summary.”Have copies for mediator, defense lawyer and client.

__3b    Settlement History  Put the “Negotiation History” on top left side of file.

__3c    Have diary reminder to see that a completed copy is in the file if settlement is reached.

__3d   Include  IRS W-9 giving our tax ID number

  1. Cost advanced

__4a.   Include under tab “Costs” on left side of file a current up to date copy of our costs advanced. Do same with associate attorney’s costs.

  1. Form: Negotiation History

__5a.   Put on top left side the form regarding the negotiation history for the file.

  1. Client OK & Attorney Evaluation

__6a.   Include under tab “Client OK” any letter, form, memo or phone message regarding the client’s authority to us to settle case. If none, ask attorney about it and put memo as to what’s said under this tab.

  1. Check Lists 

__7a.   Include on left side under negotiation history this check list. MAKE SURE EVERY APPLICABLE ITEM HAS BEEN REVIEWED, COMPLETED AND CHECKED OFF

__7b.   Put copy of attorney settlement check list under above check list.

__7c.   Put your name on the top right side of the settlement checklist in the green file after you have filled it out to show you have gone through the check list.

  1. Summary Sheet 

__8a.   Check case summary sheet. Make certain it is accurate and current. Put on left side of file over correspondence.

__8b.   FILL IN ACCURATELY AMOUNT OF AVAILABLE INSURANCE

__8c.   FILL IN ACCURATELY TRIAL DATE.

  1. Insurance 

__9a.   Include under tab “Ins” on left side of file any interrogatories which give insurance coverage.

__9b.   Copy any memos, letters etc. which might affect insurance coverage. Put under same tab.

  1. Subrogation

You must verify subrogation amounts for settlement negotiation conferences or mediation.

  1. NOTICE 

It is very important that we give notice to the proper people of any settlement conference or mediation of any kind. We normally would send such people a copy of whatever we submit and invite them to attend or be available during the settlement proceedings. Ask the attorney about the following:

__1.     Normally our client must attend the mediation. Ask attorney. If client attendance required:

__1a.   Send client form letter explaining about mediation

__1b.   Ask attorney if a client conference with attorney in advance of conference is needed. Find out if that should be before the day of hearing or day of hearing and arrange with client.

__1c.   Ask attorney if meeting on day of mediation with client should be arranged. If so, allow normally 30 minutes for this conference. Normally this will be in the same place as where the mediation is going to take place. Make sure the letter spells this out where the meeting will take place.

__1d.   Out of town clients. If the Client is traveling some distance ask the lawyer about putting the client up the night before

__2.     Associate Attorney. Make sure associate counsel is aware of the conference.

__3.     Labor & Industries: RCW 51.24.030 requires notice to the Dept. of L & I of any complaint filed as well as pleadings etc. They MUST be given notice of any settlement proceedings. Check with the attorney as to what documents should be provided to them.

__4.     DSHS RCW 43.20b.070 requires notice to the DSHS of the filing of any complaint as well as other information. Under RCW 74.09.180 and 43.20B.060 DSHS is given a lien against any settlement. Check with the attorney as to whether notice should be given to DSHS of mediation and what documents should be provided.

__5.     SUBROGATION & ERISA CLAIMANTS Subrogation claimants must be notified. Check with the attorney about this as it is very important. Ask who to notify and what to say.

  1. STEPS REGARDING SUBROGATION 

Check on the following. This information should be in the green file under a tab “Subro” on the left side:

__1.     Labor & Industries: Verify amounts due in repayment.

__2.     DSHS Verify amounts due in repayment.

__3.     Medicare. 42 USC 1395 gives them rights of reimbursement. They must be considered before any settlement is made. Ask if verification is necessary.

__4.     ERISA. Private insurance claiming privileges under ERISA must be considered before any settlement can be reached. Ask if verification is necessary. 

__5.     MEDICAL INS. Subrogation claimed by medical insurance carriers must be considered. Verify amount due.

__6.     Other: Review file and discuss with attorney and Nick any other subrogation or liens that must be verified before the mediation.

__7.     Make sure the list of subrogation claimants and amounts are provided to bookkeeper.

  1. VOLUNTARY MEDIATION PROCEDURE 

The following applies to mediation. These steps apply where we have agreed with the defense to voluntarily submit the matter to non-binding mediation. 

SEE NOTICE SECTION OF THIS CHECKLIST

Mediation Materials & Demand Letter 

THE PARALEGAL IS RESPONSIBLE TO SEE THAT THE MEDIATION MATERIALS INCLUDING ANY SETTLEMENT VIDEO AND DEMAND LETTER ARE PROVIDED TO THE MEDIATOR BEFORE THE DAY OF MEDIATION.

__1.     See previous “Demand Letter” section in this check list. Follow with respect to the material for mediation. Note:

(1)        BE SURE TO USE STANDARD LANGUAGE AT START AND AT END OF LETTER RE OFFICE POLICY.

(2)        WE HAVE A RED STAMP TITLED “CONFIDENTIAL SETTLEMENT MATERIALS” THIS STAMP MUST BE APPLIED TO THE FIRST PAGE OF THE SETTLEMENT LETTER

__1a.   Be sure client gets copy of any mediation letter with attachments and copy put in green file. Send client copy of any settlement video as well.

__1b.   ASK IF THE OTHER SIDE SHOULD RECEIVE A COPY OF OUR MEDIATION POLICY SET OUT IN THE DEMAND LETTER WELL IN ADVANCE OF THE MEDIATION ITSELF.

__2.     Time for Mediation: Do not schedule any mediation for earlier then 9:00 am or to last later than  12:00 noon unless you have the permission of the lawyer.

__3.     Settlement Video: If there is a video made for settlement purposes:

__3a.   Have tickler system to make sure we have it far enough in advance for lawyer to edit to final version

__3b.   Check with lawyer to see if copy should be sent to a claims person in advance of meeting

__3c.   Make sure copy is available for client, for defense lawyer, insurance adjuster plus our office.

__3d.   Find out from lawyer if copies should be sent to our treating doctors or key experts. Have tickler to find this out.

  1. Subrogation Issues

__1.     Include subrogation information

Cross examination & testimony Notebook:

__1.     Make very sure the cross examination notebook is complete. Ask attorney if question about contents.

__2.     Make sure testimony notebook is complete. The testimony notebook must contain the latest summaries of depositions, affidavits or other information about witness. Review notebooks to insure it is complete.

  1. Settlement file:

__1.     Prepare settlement folder. See section on settlement file. Follow steps outlined.

  1. Attorney Preparation 

__1      put in attorney’s office at least 24 hours before the scheduled conference:

__1a.   The cross examination notebook

__1b.   The testimony notebook

__1c.   The green settlement file

__1d.   The client trial file

__1e.   One yellow pad

__1f.    A written memo or reminder to take the following to the mediation:

  1. CELL PHONE
  2. present worth calculators
  3. extra work
  4. Calculator
  5. Portable Computer, Paper & Printer
  1. AFTER SETTLEMENT
  1. ATTORNEY TO DO: 

__1.     Write client. Advise client about following:

__a.     Explain terms of settlement

__b.     should client consider new wills? Refer to estate lawyer

__c.     should client consider increasing their liability insurance on car, house, boat etc.? Buy an excess policy?

__d.     Suggest client get financial advice. Give names?

  1. PARALEGAL PROJECTS

__1.     Prepare diary reminders about each of above attorney asks client to take care of to see if done or not

__2.     Work with bookkeeper re final settlement. Make sure she has copies of all relevant settlement documents

__1.     Notify: Notify the following people that the case has been settled. Secretary to do Tickler to see this is done.

  1. Bookkeeper at our office
  2. Witnesses deposed or notified of any trial date
  3. expert witnesses – with request for billing – see Jeanne about this
  4. Associate attorney
  5. Court if case pending.

__1a.   GIVE BOOKKEEPER A COPY OF THE WRITTEN MEDIATION SETTLEMENT AGREEMENT FORM

__2.     Client Letter. Be sure to send standard form letter to the client advising there will be a delay in disbursing money and recommending client get advice about settlement money. Note alternative language re our collecting interest on our fee.

__3.     Collect bills & suborn write experts, creditors and subrogation people. Contact associate attorney re costs. Secretary to do tickler to see this is done.

__4.     Settlement Breakdown: Bookkeeper to prepare settlement breakdown for attorney approval and client approval. Paralegal to do tickler to see this done.

__5.     Collect the money. Every settlement should have deadline for receipt of the money. Ask the attorney. Paralegal to prepare a tickler to the attorney to see if collected. Bookkeeper to do tickler get settlement check.

__6.     When money here. When money received advice attorney

__7.     Form Disbursement letter Be sure to use standard letter enclosing check advising client unable to give tax information, advising the amount of any interest earned, indicating anything significant re subrogation or money held back.

__8.     Delivering client money. Attorney to present final settlement check to client if clients comes in.

__9.     Minor Child Proceeds 

__ (1) if minor involved must follow approval procedure

  1. Appointment GAL
  2. Guardianship?
  3. Petition for approval/fees/division
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