• November 27, 2017

Corey Smith slipped on ice, fell, and was injured in a Wal-mart parking lot in Freeborn County three winters ago. One year ago, Mr. Smith, through counsel, sued Wal-mart for his injuries. About six months ago, the case settled in a settlement conference but the parties could not agree on the language of the formal settlement agreement for six months.

This past week, the Court had to decide the final details of the settlement agreement, extending the duration of the lawsuit by an additional 50% and delaying the conclusion of the lawsuit by six months.

Who caused this delay? Who benefited from this delay?

Civil litigators will not be surprised to hear that the court filings that address the Smith/Wal-Mart settlement agreement dispute were designated as confidential and filed under seal. So, unfortunately, we will never have clear answers to these questions.

We can, however, safely say that Mr. Smith, the injured person, probably did not cause the six-month delay or benefit from it in any way.

We can also safely speculate that the defense lawyers were paid hourly and so, in a material sense, they benefited from the six-month squabble. Wal-mart, their client, benefited by not having to pay the settlement for the six months, interest-free, but its legal fees were probably far higher than any interest Wal-Mart might have been able to get on its suspended settlement payment. (We do not even know for sure that money changed hands but it’s a good bet.)

Plaintiff’s lawyers, likely retained on a contingent fee, likely lost money by the six-month delay but perhaps felt that they were “sending a message,” “standing up for principle,” “taking the long view,” all of which they might have considered had value for them.

But, again, we can only speculate as to whether one side or the other (or both) was unreasonable.

Having said that, from the linked Court order, it seems that the lawyers fought over verbiage that the Court simply replaced with common “boilerplate” terms (see Paragragh #s 4-6). This suggests to us that one side proposed “creative” language and the other side balked.

PRACTICE POINTER #1: We have seen experienced litigators in niche practice areas (employment disputes, personal injury) bring template settlement agreements to mediations so that details can be ironed out then and there rather than being postponed and, potentially, complicated by attorney over-thought — a pernicious occupational hazard caused by inflated egos, a taste for conflict, and the billable hour.

PRACTICE POINTER #2: In smaller simpler litigation, settlement negotiations feel over when Party A agrees to pay Party B $X within Y Days. IT IS NOT OVER. Civil litigators need to be mindful of the “loose ends;” they must budget mental energy to attend to them after what is often a long day of negotiation. They need to prepare their clients to stick around and tie things up, as well.


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