The Risk Manager, Winter 2005
- Do not encourage false or unreasonable expectations. Compromise is hard enough to achieve with reasonable expectations.
- Discuss settlement with the client throughout the representation. It is not a sign of lawyer weakness to discuss reality with a client.
- Take plenty of time to explain the advantages and disadvantages of a legitimate offer to the client. Since settlement involves compromise, the client must process some amount of disappointment. This is easier for a well counseled client.
- Accepting or rejecting a settlement offer is the client’s decision. Accordingly, keep the client involved in settlement negotiations from start to finish. After Kentucky’s Clark v. Burden (Ky., 917 S.W.2d 574 (1996)), getting the client’s decision in writing is the only safe way to risk manages settlement negotiations. Often settlement offers come up suddenly just prior to trial, during trial, or at other times when quick action is required and administrative support is limited. Regardless of the circumstances use whatever paper is available, hand-write the client’s decision, and have the client sign and date the paper. Document thoroughly all settlement negotiations and client discussions about settlement.
- Recognize that settlement of a divorce case does not carry with it the same finality typical of other settlements. A divorce settlement is not the end of the matter for the client -- rather a new beginning. Future consequences of faulty divorce settlements will reveal a lawyer’s negligence with a vengeance. Many settlement malpractice cases involve divorce settlements that have not adequately covered QDROs, taxation, pensions, IRAs, and valuation of real estate.