Strategies for Settling Civil and Criminal Cases

Strategies For Settling Civil and Criminal Cases

By: Thomas F. Liotti and Edward Paltzik[1]

The strategies for securing favorable settlements in civil cases and winning extraordinary plea bargains for criminal defendants are remarkably similar. It is always surprising to hear civil attorneys who say that they cannot handle a criminal case and criminal defense attorneys who say that they cannot handle a civil case. To be a great settler in either realm of law requires knowledge and application of negotiating skills combined with an approach different than that of the mediator or judge, both of whom often look for middle ground in a Solomon-like manner. Indeed, judges typically say that

“a good settlement is one where neither side is satisfied.” On the other hand, the skillful attorney is not satisfied with mere middle ground. Convincing your adversary to settle on your terms is the art and science of negotiating. It is not a matter of luck or compromise.

It is more a matter of winning the case without a trial.

Conduct a Thorough Investigation

The first order of business is to learn all that you can about your case and the other side’s. Consider some of the important questions you will be confronted with after you have been retained. What are the critical issues in the case that you hope to learn in discovery, through examinations before trial or simply by way of a thorough interview with your client? Do you need a private investigator to interview potential witnesses or an accident reconstruction expert?[2] Are there psychiatric issues in the case that need to

[1]Thomas F. Liotti is an attorney with offices in Garden City, New York and a Village Justice in Westbury. Edward Paltzik is an Associate in his firm. [2] See People v. Barry Feinstein, alleged double vehicular homicide, (Suffolk County, 1994). Case was scheduled for Grand Jury presentment when defendant was represented by other counsel. Mr. Liotti’s firm negotiated to take the case off of the Grand Jury calendar and conducted an extensive investigation, which included the assistance of private investigators and an accident reconstruction firm. The District Attorney elected be addressed? If you invest the time, effort and thought into acquiring as much information about your case as soon as possible, you will likely reap the rewards when it comes time to negotiate a settlement or plea bargain because you will know more about the case than the other side, thereby enabling you to operate from a position of strength.

In order to gain a knowledge advantage that will ultimately produce better settlement or plea bargain results, you must conduct an exhaustive investigation. That investigation should always include a thorough interview of your client in which you leave no stone unturned. In many cases, you may need to question your client about every aspect of their life, including personal or sensitive areas. However, in many instances, merely interviewing your client will not suffice. That is where “hired guns” come in - private investigators, accident reconstruction experts, psychiatrists, forensic accountants and other specialists.

not to prosecute. Smith, Estelle Lander, “Teen Won't Be Prosecuted In Crash”, Newsday, (Suffolk edition) January 7, 1994 at 35. See also, People v. Jesenia Vega, (Suffolk County, 2007, Hon. James F.X. Doyle presiding). Defendant was accused of running over and dragging her boyfriend to death following a drunken argument at a block party. Mr. Liotti’s firm retained accident reconstruction firm. Accident reconstruction showed that the defendant did not deliberately run over her boyfriend, which contributed to a favorable plea to a reduced charge and sentence of 1 to 3 years. See “Alfonso A. Castillo, ‘Hysterical Drunk,’ or Fearing for Life? Woman Faces Charges in Boyfriend’s Death”. Newsday, August 31, 2007 at A20. “Long Island Woman Denies Charges In Death of Boyfriend”, August 30, 2007. See also, Laura Rivera and Joseph Mallia, “Her Take on Tragic Night, Driver Accused of Fatally Dragging Her Boyfriend in July Says She Was Only Trying to Escape His Abuse”, Newsday, December 27, 2007 at A22. See also, Eric German, “Guilty Plea In DWI Killing of Boyfriend”, Newsday, March 17, 2009 at A4; Associated Press, “Woman Gets 1 to 3 Years for Boyfriend’s Dragging Death”, New York Post, July 1, 2009; Jennifer Sinco Kelleher, “Woman Sentenced in Dragging Death of Boyfriend”, Newsday, July 1, 2009; Jennifer Sinco Kelleher, “She Gets Prison in Dragging Death - Girlfriend Gets 1 to 3 Years in DWI Accident”, Newsday, July 2, 2009 at A16. Private investigators often prove invaluable for their ability to interview witnesses and gather evidence. In cases where your client’s behavior may be partially or entirely justifiable as a result of a psychiatric or medical condition, you need to promptly pursue that aspect of the case with the help of a psychiatrist or doctor.[3] Cases involving accidents, crashes or other impacts will often need the perspective of an accident reconstruction expert to show the other side that your client was not at fault. Cases involving theft or other financial loss will often cry out for the services of a forensic accountant.[4] Evidence is likely to degrade or disappear due to natural conditions

[3]People v. Kathleen Prisco, (Suffolk County, 2009, Hon. Robert Doyle presiding). Wife accused of murdering husband, an attorney. On October 28, 2010 the defendant entered a Not Guilty By Reason Of Insanity (N.G.R.I.) plea before the Hon. Robert Doyle. Mr. Liotti’s firm had retained the services of a psychiatrist, who determined that the defendant was suffering from a mental disease or defect, which diagnosis the District Attorney’s psychiatrists concurred with. See Andrew Strickler, “Murder In Fort Salonga, Wife Accused of Stabbing Husband”, Newsday, October 31, 2009 at 1 and A3; Laura Rivera, “Request For Psych Exam”, Newsday, November 2, 2009 at A14; Chau Lam, “Husband ‘Was Gonna Frame Me’”, Newsday, November 3, 2009 at A2; Taylor K. Vecsey and Cynthia R. Fagen, “L.I. Wife Busted In Gory Slay”, New York Post, November 1, 2009; Vess Mitev, “Wife Who Killed Her Lawyer - Husband To Undergo Exam”, New York Law Journal, November 3, 2009 at 1 and 4; Andrew Strickler, “Wife’s Mental State In Question”, Newsday, November 4, 2009 at A15; Carl MacGowan, “Insanity - Plea Plan In Killing”, Newsday, October 19, 2010 at A24 and Andrew Keshner, “D.A. Considers Taking Plea In Case Of Murdered Lawyer”, News in Brief, New York Law Journal, October 19, 2010 at 1 and 4. . See Carl McGowan, “Fort Salonga Murder Suspect Admits She Stabbed Husband”, newsday.com, October 28, 2010; Cark McGowan, “Wife Adits Stabbing In Insanity Plea”, Newsday, October 29, 2010 at A18; November 1, 2010, New York Law Journal, News In Brief, Andrew Keshner, “Woman Who Killed Attorney-Husband Will Not Face Trial”. [4]People v. Anthony Galasso (Nassau County, 2007, Hon. George Peck presiding). Alleged Grand Larceny, 22 Count Indictment, concerning theft of $4.3 to $8 million in escrow money from brother’s law firm. Mr. Liotti’s firm retained the services of a forensic accountant, who attributed only $600,000 of the alleged theft to the defendant. The forensic accountant’s finding contributed to eventual compromise on $2 million as the amount attributable to defendant and a favorable plea deal involving a 2 ½ to 7 ½ year sentence. See Alfonso A. Castillo, “Bookkeeper Faces Charges”, Newsday, October 25, 20007; Richard Weir, “He’s Caught in Luxe Life Lies, Lawyer’s Bro Charged With Skimming $4.3 million from Firm Fund”, The Daily News, October 25, 2007 (lead story Long Island News) NS 1; Peter Sloggatt, “Indictments Handed Down in $4M Law Firm Embezzlement”, The Attorney of Nassau County, October, 2007 at 1 and Vesselin Mitev, (exposure to weather), repairs, cleanup efforts or even due to wrongful conduct by the other side (destruction of evidence). The passage of time is also likely to have an impact on witnesses, as memories fade and witnesses move. Therefore, the decision of whether to retain the services of an investigator, accident reconstruction expert, psychiatrist or other specialist should me made as quickly as possible.

Consider Worst-Case Scenarios

Many dedicated attorneys are so well prepared that they cannot imagine losing or that anything could possibly go wrong with their cases. That view of looking at your case with rose colored glasses involves too much ego and not enough objectivity. This kind of attitude is destined to fail. It is often difficult for clients to accept this kind of objective analysis of their cases, but the attorney must nonetheless provide the client with a realistic, fact-based assessment of the case. In a civil case, prior to entering settlement discussions, the attorney must determine the extent of damages; consider whether liability can be proven by a preponderance of the evidence; and measure comparative fault and the percentage of liability, if any, for all parties. In a criminal case, prior to entering into plea discussions, the attorney must consider all plausible defenses; analyze whether the case is overcharged; account for the effect of pre-trial publicity[5] on potential jurors; attempt to determine what charges, if any, are likely to come out of the grand jury; and

“Firm: No Reason to Suspect Theft By Bookkeeper”, New York Law Journal, November 13, 2007 at 1, 16 & 15. See News in Brief, “Bookkeeper Who Stole From Firm Pleads Guilty”, New York Law Journal, March 3, 2008 at 4. See also Ann Givens, “Bookkeeper Sentenced”, L.I. Briefs, Newsday, June 7, 2008 at A13 and Vesselin Mitev, “Ex- Bookkeeper Is Sentenced For Stealing From Kin’s Firm”, New York Law Journal, June 9, 2008 at 1 and 3. [5] See Thomas F. Liotti, Media at What Price, New York Law Journal, Perspectives Column, September 1, 1994 at 2 and Thomas F. Liotti, Lawyers and Media - Are You Savvy?, The Attorney of Nassau County, December, 2003 at 4, 5, 10, 11, 12 and 13. ultimately, determine whether the prosecutor can meet their burden of proof beyond a reasonable doubt.

Additionally, in civil and criminal cases, before an attorney can negotiate effectively, the attorney must consider how well (or poorly) the client’s case is likely to be viewed by a jury, and even how the case is likely to be viewed by the presiding judge, who will decide crucial pre-trial motions.

In civil cases, attorneys should research comparative verdicts and settlement analysis. The New York Law Journal and Verdict Search[6] are helpful places to look.

Consider the high end and low end of the range of possible damages awards if the case goes to a jury. In criminal cases, consider the minimum and maximum penalties that your client faces if convicted after trial, and whether it is more likely that the penalties imposed will be closer to the minimum or the maximum level in the event of a conviction. Also consider whether your client faces any collateral consequences (such as the loss of a professional license or other privilege) in the event of a conviction.

There are many attorneys who take the first money or plea offer made to them instead of formulating a realistic demand. Generally, the worst settlement and plea bargain offers are given to attorneys who never try cases. The best offers are given to attorneys who do try cases. In other words, in order to extract the best settlement or plea offer, prepare your case as if it is going to trial and make sure your adversary realizes that you are prepared to go to trial. Having considered worst case scenarios, you will be prepared to go to trial and ready to call the other sides’ bluff if they refuse to negotiate in good faith. Other than the expenditure of additional time and money, there is little

[6] See Verdict Search (verdictsearch.com). downside to being prepared for trial - and as discussed above, you want to invest heavily in gaining knowledge about your case anyway.

Early Settlement Discussions: “The Ballpark” Analogy

Assuming the other side is willing to negotiate in good faith, it is good to be proactive, so long as you remember to never bid against yourself. A proactive approach to settlement can yield outstanding results. In civil cases, it is never too early to cultivate a relationship with the defendant’s attorney and the assigned adjuster for the defendant’s insurance carrier. In criminal cases, the same goes for the assigned Assistant District

Attorney or Assistant United States Attorney. As soon as you learn the identity of the attorney for the other side, you should call, introduce yourself and lay the groundwork for productive settlement discussions. You should also research your adversary’s background if possible.

In making a settlement demand or requesting a specific plea offer, know why you are doing it. You must know what your parameters are – the floor and the ceiling. You must also understand that in the early stages of a negotiation, before concrete ideas have been exchanged, there will likely be “code language,” to wit: “I have some flexibility,” “I have a little flexibility,” or “I have no flexibility.” We prefer to use code language in the form of the “ballpark analogy.” The ballpark analogy is perhaps the best example of the code language that permeates the early stages of settlement and plea negotiations. As settlement negotiations progress, the use of code language will naturally decrease as the parties settle into a more fact-based, concrete discourse. The ballpark analogy applies to the earliest stages of settlement and plea discussions. For example, if you have a wrongful death case that in your view is worth in the high six figures, then you might say to the other side, “The case is at least a six figure case. In order for us to even have a discussion about settlement, I need to know that you are acting in good faith and being realistic. In order to prove that to me, you need to come into my ballpark. You do that by telling me that you recognize that this is a six figure case.” In another example, suppose you have a criminal case in which your client is charged with Grand Larceny, a felony. You might say to the Assistant District

Attorney, “We cannot accept any deal that involves a felony. In order for us to even consider avoiding a trial, I need to know that you have a realistic view of the evidence and the mitigating circumstances in this case.” In either example, if you get the answer you are looking for, you will know that you have at least one hundred thousand dollars on the table or that you have at worst a misdemeanor plea offer on the table. You also know that there is a basis for continued settlement or plea discussions. On the other hand, if you don’t get the answer you are looking for, you are prepared to proceed toward trial because you and the other side are not in the same ballpark.

Once you determine that your adversary is prepared to be reasonable and to enter your ballpark, it is appropriate to make a monetary demand or a specific plea demand.

Once you make your specific demand, do not bid against yourself - once you give a demand do not change it until the other side bids against it. In a civil case if you are representing the plaintiff, the idea is to get the other side to come up to your number. In a criminal case, the idea is to get the prosecutors down to the offense and punishment level that you and your client deem favorable under the circumstances. In any event, do not allow your adversary to box you in to making a demand until you are comfortable doing so. You should not be comfortable making a demand until you are sure that your adversary is in the same ballpark. There is good reason for exhibiting caution in making a demand. The demand that you make will follow you for the rest of the case. The demand figure or proposed plea bargain establishes your expectations and affects the way in which your adversary views your credibility and the strength of your case.

Advanced Settlement Discussions: Maximize the Strength of Your Case

Assuming that you and your adversary can agree that you are in the same ballpark, an important hurdle has been cleared – the two sides have agreed that there is a reasonable basis for further negotiations. At that point, settlement or plea is far from guaranteed, but no longer is the idea of settlement merely inchoate. Naturally, the code language that guided the early stages of negotiation, the “pre-ballpark” stages, must now be discarded in favor of a concrete, fact-based approach.

As you prepare for the more advanced stages of a settlement or plea negotiation, anticipate favorable “battleground” topics. This way of thinking is no different than the approach that a Presidential candidate may have. With so many states either solidly

Democratic or solidly Republican, Presidential candidates in recent years must be pragmatic and realize that there are certain states that they will not be able to carry, no matter how hard they try. Therefore, candidates identify so-called “battleground” states, where the outcome could go either way and could turn on the smallest of details – states such as Ohio, Virginia and Missouri. As an attorney negotiating a settlement or plea, you must find your “Ohio, Virginia and Missouri.” As you examine documents and speak to your client, you will realize that certain topics will not yield beneficial results for your client no matter how skillfully you present the issue to the other side. Instead, focus on the battleground issues that you believe will inure to your client’s benefit.

In civil cases, an excellent example of a favorable battleground issue that a plaintiff’s attorney may repeatedly encounter is life expectancy. In a recent wrongful death lawsuit, we represented the widow of an elderly man who had been struck and killed by a school bus while riding his bicycle.[7] The decedent was 76 years old at the time of the accident. The school district’s insurance carrier insisted that damages

(including lost pension payments, Social Security payments, lost salary from part-time work and assorted other losses) be calculated on the basis of an 80 year life expectancy.

However, the carrier’s assertion of an 80 year life expectancy lacked any factual basis.

The decedent had been in perfect health before the accident, did not drink, did not smoke, did not take any medication and exercised regularly. It seemed improbable that his life expectancy at the time of death was only 4 years. In order to refute the carrier’s working number of 80 years, we referred to the Actuarial Life Table at www.ssa.gov (The

Government’s Social Security website), which revealed that the average life expectancy

[7] See Estate of Joseph Shannon v. The City of Long Beach and The City of Long Beach School District (Nassau County Supreme Court, Index No. 010359/09). Settled for $610,000 ($10,000 from the City of Long Beach and $600,000 from School District). Wrongful death case. School bus hit and killed our client, a 76 year old retired teacher who was riding a bicycle to church without a helmet. He lived for approximately 11 hours after the accident. Compensatory damages included loss of Social Security, wages and benefits that he received for being a lecturer on cruise lines. Damages were also shown by Department of Labor Statistics indicating that his life expectancy would have been 85. See Laura Rivera, “City’s Red Light To Stop - Sign Campaign”, Newsday, December 17, 2009 at A6; Joseph Kellard, “School District Settles Death Suit, Family of Cyclist Hit By School Bus Awarded $610,000.00”, Long Beach Herald, March 25-31, 2010 at 1 & 3 and Joseph Kellard, “E. Olive Homeowner Takes Down Signs”, Long Beach Herald, March 25-31, 2010 at 3; Verdict Search, New York, March 29, 2010 edition Vol. XXVII, Issue 39 at 19 & 20 and Laura Rivera, “$600G Settlement In Bus Fatality”, Newsday, April 7, 2010 at A23. of a 76-year-old male was almost 10 years. Using that figure, we were able to change the dynamic of the negotiation by presenting the carrier with irrefutable documentary evidence that the decedent would likely have lived perhaps twice as long as the carrier contended. We were then able to argue that all of the damages figures should be, at a minimum, doubled. Life expectancy arguments can be especially powerful because an increase in life expectancy immediately increases damages across the board, regardless of the precise amounts that are ultimately agreed upon for each specific category of damages.

In addition to identification of battleground issues, you should search for and identify “hidden values.” Hidden values may not emerge the first time you meet with your client, or even in subsequent early meetings. But after you review all of the documentation that your client provides and other materials gathered during the course of your investigation, you may find items that could yield enormous gains in settlement negotiation. The wrongful death lawsuit described above also provides us with a wonderful example of a hidden value. During the course of our investigation in that case, we learned that our client and the decedent received several free cruises annually on

Norwegian cruise lines in exchange for the decedent’s on-cruise service as a lecturer and naturalist. At first glance, it would have seemed as though free cruises would not equate to damages in a wrongful death action. However, our client, the surviving spouse, only received the free cruises because of her husband’s lecturing ability. With her husband deceased, our client could no longer enjoy the benefit of free cruises, a perk to which she had become accustomed. After carefully questioning our client about the nature of the accommodations on the cruises and the locations of the cruises, we were able to determine the value of the cruises by examining the Norwegian cruise lines website.

Coupled with the life expectancy increase, the value of the free cruises increased the value of the ultimate settlement by a significant amount.

If you focus on battleground issues and hidden values, you will find consistent success in maximizing the value of your case once you find yourself “in the ballpark.”

Conclusion

There is both an art and science to settlement and plea negotiations. The best deals are struck by well-prepared attorneys who work their cases using a methodology that includes both art and science.