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A newsletter from West providing Westlaw® search tips for corporate counsel and staff
November/December, 2007
PI-SETTLE: Negotiating the negotiating process?
The number of lawsuits and litigators has grown exponentially over the years. However, a related number has been shrinking: Fewer cases go to trial today than in previous decades. A widely cited study by the American Bar Association found that in 1962, 11.5 percent of federal civil cases went to trial; by 2002, only 1.8 percent did. See Adam Liptak,
U.S. Suits Multiply, But Fewer Ever Get to Trial, Study Says, N.Y. TIMES, Dec. 14, 2003, at A1.
Given that reality, tort lawyers would be wise to familiarize themselves with the many tasks involved in negotiation and settlement, including
- effectively weighing the costs and risks of litigation and litigation alternatives
- projecting likely fees and litigation costs
- counseling the client so as to avoid "settler's remorse"
- drafting demand letters
- preparing for mediation or other alternative dispute resolution processes
- drafting settlement agreements
- evaluating trusts, structured settlements, and other settlement vehicles
- resolving issues related to Medicare, Medicaid, and private health insurer liens that can significantly impact the net recovery
- advising the client how a settlement will affect taxes and government benefits
A place to start would be the Negotiating and Settling Tort Cases database (
PI-SETTLE), recently released on Westlaw. PI-SETTLE contains the full text of Negotiating and Settling Tort Cases, a comprehensive guide that explains effective settlement techniques in the context of personal injury litigation. Veteran litigator Guy O. Kornblum and settlement administration expert Matt Garretson discuss case evaluation; structured versus lump-sum payout considerations; effective use of mediation; and post-settlement issues such as government benefit programs (Medicare and Medicaid), liens and subrogation, 468b qualified settlement funds, and mass-tort settlements. The authors also address health care liens and taxation of personal injury awards—factors that increasingly result in time delays, cash flow problems, and client dissatisfaction.
In addition to bite-sized explanations, documents include checklists; sample letters, agreements, and clauses; and a state-by-state chart of Medicaid recovery information.
An easy way to view the contents of PI-SETTLE and retrieve practice tips and analysis of particular stages of the settlement process is to use the Table of Contents service, which you can access by clicking Table of Contents at the PI-SETTLE search page. (You can also search using the Terms and Connectors or Natural Language search method.) ResultsPlus is available for this database.