Parties that settle a lawsuit typically sign a settlement agreement and mutual releases that may contain language specifying that the settlement applies to all “known and unknown claims and causes of action from the beginning of time through the end of the world”. A party who later discovers that he omitted something from the terms of the settlement might try to re-open his case once it is settled, but the all-encompassing language in the settlement agreement and release that he signed will make this all but impossible. Accordingly, when you agree to settle your case, you need to be 100% certain that you have considered all possible damages claims and that you are receiving compensation for all of your injuries, even those that arise after you have signed the settlement.
Parties to lawsuits might assume that their settled cases can be re-opened because they have heard of other settled cases that were resumed and re-litigated after the settlement and release was signed. In the commercial litigation arena, a settlement agreement that is procured as a result of fraud or duress may present an opportunity to void the settlement. This is rarely the case in settlements of personal injury actions. An insurance company that is standing in for the defendant and paying the claim has every incentive to settle it quickly in order to avoid excessive legal fees and expenses, but that company’s sense of urgency is not the same as duress that can justify re-opening a case.
Given that it is virtually impossible to re-open a settled personal injury case, a party that is seeking to recover damages for his injuries needs to understand both his role and the role of his lawyer when he files his lawsuit. By definition, his lawyer will be his zealous advocate in that lawsuit and will argue for the largest possible damages award when negotiating a settlement agreement with a defendant. Yet the lawyer’s interests are not always fully aligned with the interests of an injured party. Many lawyers who take on a large volume of personal injury cases will need to streamline their workloads to manage all of those cases. The easiest way for those lawyers to accomplish this is to urge their clients to settle cases quickly, and often for a smaller amount of damages than they might receive if they pursued their claims more vigorously.
The key to maximizing damages is to understand the lawyer-client relationship, and in particular to understand which of the lawyer and the client has the right to make final decisions in the case. A lawyer who represents an injured party is responsible for negotiating with a defendant or the defendant’s insurance company, but that lawyer should not make the final decision to sign a settlement agreement and release. That decision is made solely by the client. His lawyer can and should advise him on the negotiation process, and he should evaluate the prospects and possibilities of continuing the negotiations for a higher damages award. He should also advise the injured client on the likelihood of getting a higher award if the case is taken to trial rather than being settled. In some cases, an injured party might receive a smaller damages award if his case is argued to a jury. Rather than simply telling a client to sign a settlement, a lawyer should provide all of this information to a client and should consult with that client and answer all questions before the client makes the final decision to sign or not sign the settlement.
A lawyer who tells his client that he can re-open a settlement agreement if, for example, the client discover a latent injury, is not doing that client any favors. If you have experienced an injury in Minnesota, the attorneys at the Law Office of Joshua Borken will spend the full amount of time necessary to help you understand the value of your case and to confirm that you are receiving the largest damages award if you decide to sign a settlement agreement rather than taking your case to trial. Please contact us to schedule an appointment at your earliest convenience.