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It's not over until ...

Article Excerpt
The ink may have dried on the settlement agreement, but the plaintiff lawyer must labor on. It takes direction, planning, and resourcefulness--as these attorneys report--to get the fat lady to sing her final aria and bring down the curtain on the case.

The waiting is the hardest part

DOUG SHEFF

It took the better part of a year to properly investigate our case, collecting thousands of pages of research, medical records, and witness statements. Finally, we filed it (involving a woman who had suffered a severe brain injury) against a large multinational corporation.

Discovery was hard fought and extensive. Trial was looming. The parties decided to mediate the case, and after endless discussion, we settled. My work was finally over--or was it?

The first obstacle to our closing the deal involved how the settlement would be paid. We considered a lump-sum settlement, a structured settlement, and a combination of the two, and we retained experts to evaluate various proposals and an economist to check calculations. In the end, the woman's family agreed to have part of the proceeds paid up front (for legal fees, expenses, and loss-of-consortium claims) and the balance invested in a combination of structured settlement payments and annuities.

The more difficult question was who would manage the money. The brain-injured woman's husband had been appointed as temporary guardian at the outset of the case. He was elderly, however, and other family members questioned his ability to continue in this capacity. After days of argument and discussion, the husband was reappointed as guardian; however, a trust was also established. More days of debate ensued when the family could not agree on a trustee. Finally, an independent trustee was selected.

Once this had all been arranged, the entire settlement had to be approved by the court because the proceeds were subject to a seven-figure workers' compensation lien. In Massachusetts, the law once allowed the court to intervene and reduce a lien when a reduction would promote justice. But the law changed, and now lien holders have to be dealt with independently.

This particular lien required a separate mediation process, which was difficult to resolve. Having argued so passionately that the merits of our case were strong against the defendant, we were forced to argue just the opposite--the only leverage to convince the lien holder to compromise was the likelihood of defeat.

We argued that my clients would not sign the petition without a significant reduction of the lien and that it was a tough case that could be lost at trial. We got the lien reduced significantly, but there were also several smaller liens that had to be negotiated. It took weeks to resolve them and report the case ready for final approval. We secured a court date, received approval, and waited for the check from the insurance company.

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After clearing so many hurdles, the finish line was in sight, and we expected the check forthwith. But then I was told that the insurer wrote checks only on the twentieth of the month; we had made our request on the third.

Agitated already by the lengthy process, my clients counted down the days....