Pre-trial Motions and Settlement Discussions

The whole purpose of a trial is to resolve disputes about the facts of your case. If neither party can dispute the facts, then a motion for summary judgement can be filed. A summary judgement means the judge looks at the facts, applies the law, and makes a ruling -- saving you both a lot of time, money, and anguish. If there is any dispute about the facts, then the judge will deny the motion. In other words, there is no reason to bring a case to trial unless there is evidence that should be heard by a jury.

Other motions include:

  • Motion to dismiss - The Defendant can request the case be thrown out because it doesn't state any kind of claim that warrants an award; or, as we mentioned earlier, if the court lacks the subject matter jurisdiction or personal jurisdiction for the case, isn't of the proper venue, or there has been a problem with the process itself.
  • Motion for judgement - Even after the trial has started, the parties can request that the judge make the ruling before the case is sent to the jury. Like the summary judgement, this motion is used when there aren't any facts that are disputed in the case. If testimony in the trial has resolved the disputes (at least to reasonable minds), then the motion for judgement will probably be accepted and the judge will rule -- if not, the judge will deny the motion.
  • Motion for judgement notwithstanding verdict - This motion is filed when the case goes to the jury but the jury's verdict isn't reasonable. (Note: This is rare.) In order to file a motion for judgement notwithstanding verdict, your attorney first would have to have filed a motion for judgement after all of the evidence had been heard. If the judge denied the motion and sent the case to the jury, and the verdict the jury then came back with is totally unreasonable, the motion for judgement notwithstanding verdict can be filed. If the judge agrees, he will rule on the case.

Before a case can go to trial, discussions take place for settlement out of court. This is by far the most frequent resolution for civil lawsuits. This is often the stage when mediation takes place. When you settle, it usually means that each side is giving in on something. For example, maybe the defendant will admit to being negligent when he put in an inadequate drainage system for his pond's overflow pipe after it washed away your driveway, but he may not agree to drain the pond as you are demanding. You, on the other hand, may get your driveway rebuilt along with a better drainage system to ensure it doesn't happen again. Your demands for lost wages while you couldn't get your car out of your driveway to go to work may have to be dropped, or could be a point to negotiate further.

Some of the things that have to be considered during this stage include:

  • Does the defendant have the money you are demanding for damages? If not, is there any use in going to trial? Also, are your monetary demands reasonable for this type of dispute?
  • Do you (and your attorney) think you have a good chance of winning now that discovery has produced more facts? If you aren't sure, then settling may be your best option.
  • What if the fees you pay your attorney end up being higher than what you are awarded by the judge or jury? If there is a chance of that happening, then you certainly want to settle (only if you're trying to get money rather than some other sort of action.) If you can reach an agreement that would be beneficial without involving money, that too is a reason for settling out of court.
  • Are you sure you are up for the emotional roller coaster of a trial (taking the stand to testify, having your dirty laundry aired out in public...)?

Settlement discussions can actually happen at any time -- the earlier the better if you want to save on attorney fees. Most often, settlement discussions take place when some big piece of evidence turns up that will greatly affect the outcome of a trial one way or the other. Other times, settlement discussions occur right before the trial or when the other party files a motion that could affect what you might ultimately get out of the case.

Negotiating a Settlement

If you do decide to try to settle, you can either have your attorney draft a formal offer of settlement strictly based on your terms, or you can sit down with the defendant and negotiate.

By now, you and your attorney should know about all of the facts of the case as well as have a good feel for how the defendant feels about the case and possible outcome. If you decide to sit down and try to negotiate a settlement, you should first plan a strategy. Keep in mind that if your offer is totally one-sided, it won't be accepted, just like in any type of negotiation. Some of your strategy will, of course, depend on the facts of the case and how strong your side of it is. Since you've gotten this far in the process without the case either being decided by a judge or else totally dismissed, there must be some disputed facts that require a trial. Sitting down and discussing those discrepancies with the defendant may or may not get you anywhere.

Here are some pointers for the negotiation table:

  • Don't nitpick the small points. Go straight to the major issues and use the smaller ones only as you need to.
  • Maintain a nonhostile (or mostly nonhostile) demeanor -- even if you don't think things are going your way.
  • If you have anything that can be held back as negotiation ammunition later on, then do so. It may come in handy. If, however, you may get more right off the bat by presenting this ammunition early on, then do so.
What Will the Settlement Cover?

A settlement ends the lawsuit. In doing that, it also lays out the different points that the plaintiff and the defendant have agreed on, such as how much money is going to paid by whom to whom, how/when/where that money will be paid, what actions will be either forced or prohibited, who is paying court costs, etc. It also will usually state that this case cannot be resurrected with a new lawsuit based on related issues. These things all would be specifically spelled out in the written document known as the dismissal with prejudice, notice of dismissal, or sometimes the stipulation for dismissal. Once this document is completed and signed, the defendant is "released" from the lawsuit.