Strategic Options in Concluding a Civil Lawsuit - May 2007 - the Civil Litigator
| Publication year | 2007 |
| Pages | 41 |
2007, May, Pg. 41. Strategic Options in Concluding a Civil Lawsuit - May 2007 - The Civil Litigator
May 2007
Vol. 36, No. 5 [Page 41]
The Civil Litigator
Strategic Options in Concluding a Civil Lawsuit
by Maureen Sweeney, Marcia S. Krieger
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Article Editors:
Don Kelso, Denver, of Holme Roberts & Owen LLP - (303) 861-7000, donald.kelso@ hro.com; Eric Bentley, Colorado Springs, of Holme Roberts & Owen LLP - (719) 473-3800, eric.bentley@hro.com
Maureen Sweeney is a third-year student at the University of Colorado School of Law. During the summer of 2006, she was as an intern with Judge Marcia Krieger, who serves on the U.S. District Court for the District of Colorado. They are grateful for the fine editorial assistance provided by Brian Bergevin and Juliana Zolynas, Judge Krieger's career law clerks.
This article provides an overview of procedural methods for resolving a civil case after settlement. The accompanying chart summarizes resolution methods and discusses the pros and cons of each method.
After putting the finishing touches on a settlement agreement, many practitioners sigh with relief - the agreement is signed and the civil case is complete. However, even after a settlement has been reached, the lawsuit still must be concluded. This might involve simply filing a motion to dismiss. Dismissal by motion is only one of six procedural methods attorneys can use to conclude a civil lawsuit. What method is best depends on the terms of the particular settlement and the objectives of the parties.
When a settlement is consummated by the exchange of full payment for a release of all claims, the procedural method for concluding the lawsuit probably does not matter. Similarly, when the nature of the litigation requires use of a particular method to conclude it, such as in a class or marriage dissolution action, the prescribed procedure must be used. However, if the settlement does not fall neatly into either of these two categories, the procedural method used to conclude the lawsuit can be important in negotiating settlement terms and in ensuring the settlement's success.
Practical Considerations in Settlement
It is axiomatic that parties settle to end their controversy, but they also often have practical concerns about privacy (confidentiality as to the existence of the settlement or its terms); a desire for finality (to avoid further litigation); and the expectation that the settlement agreement can be easily enforced in the event of default. These objectives combine in numerous ways, and may be in conflict in some settlements. For example, parties may want a settlement agreement to be kept private, but also to have a court approve it. One party may want a public declaration of fault or an agreement that creates a fixed obligation, but the other party may want no public record that would adversely impact financial or credit reports. One party may prefer a single, lump-sum payment, and the other may prefer structured payments made over a period of time. If payments are made over time or if there are other future obligations, a party may be concerned about how the obligation will be enforced and at what cost. These and other practical objectives can be directly impacted by the procedural method used to conclude the lawsuit.
A Summary Chart
As noted earlier, there are six common procedural methods by which a civil lawsuit in a federal or Colorado court can be concluded:
1) closure of the case;
3) motion and order of dismissal;
4) motion and order approving a settlement agreement;
5) judgment by offer and acceptance; and
6) judgment by stipulation
The chart at the end of this article sets out these methods, the applicable rule of civil procedure, some applicable case law, and the method's advantages and drawbacks. Although the chart is intended to be a resource in negotiating, drafting, and implementing settlement agreements, it is simply a summary. To put it to best use, it will be helpful to be familiar with the doctrines of collateral estoppel, res judicata, accord and satisfaction, waiver, release, and estoppel. In addition, there may be substantive laws, local rules, or procedures that apply in a particular context.
Case Studies
Each case and settlement is unique. As a result, possible settlement scenarios are limited only by the creativity of counsel and clients. The following examples illustrate how the procedural method used to conclude the litigation can relate to settlement objectives.
Case Study 1
The parties reach a settlement on the eve of a critical event in the lawsuit - entry of a preliminary injunction, taking of a critical deposition, or during...
To continue reading
Request your trial