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.
SETTLEMENT AGREEMENT SUMMARY
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.
1.1 “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. MANNER OF PAYMENT
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. TERMS OF SETTLEMENT
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____