Legal Malpractice

When is a Settlement not a Settlement?

By (Andrew Lavoott Bluestone)

It's just a few words spoken to the record, and in this case, none of the participants dispute what was the agreement between the parties, yet, here, a settlement was not a settlement, and all because the judge made a decision and held firmly to it.

In Diarassouba v Urban ;2009 NY Slip Op 09420 ; Decided on December 15, 2009 ;Appellate Division, Second Department  here is what happened:

"While the court was in recess and the jury was deliberating, Conrad Jordan, counsel for the plaintiff, communicated to the defendants' counsel, Barry M. Viuker, that his client had authorized him to accept a settlement offer in the sum of $150,000. Viuker provided no confirmation of the settlement, but rather asked, "Do we have a settlement?" Jordan responded that [*2]he accepted the settlement offer. Viuker proceeded to leave the room for several minutes, without having responded in any way to Jordan's statement. The defense counsel's question, "Do we have a settlement?" was his only and final mention of the settlement agreement until after the court took the jury's verdict.

During Viuker's absence from the courtroom, Jordan informed the court clerk that the parties had reached a settlement, although he did not provide a specific settlement amount. The clerk did not record this information, but said that he would inform the Judge, who was already on her way to the courtroom to read a new jury note. Viuker then returned to the courtroom. When the judge arrived at the courtroom, Viuker inquired, off the record, as to the contents of the jury note. The Judge responded that the jury had reached a verdict. Once again, Viuker left the room for a short while.

When Viuker returned, Jordan asked the court to memorialize the settlement on the record prior to taking the verdict, but the court refused Jordan's requests.

"Mr. Jordan: Could I put my request on the record?
"The Court: Once I have a verdict, I take the verdict, and then the parties are free to do what they agreed to. An agreement is an agreement, counsel.
"Mr. Jordan: Why can't we put the agreement to settle the case for $150,000 on the record?
"The Court: Because I said what I have to say. Let's proceed."

Viuker was silent throughout this whole exchange.
The verdict was then taken in the plaintiff's favor, finding that Dr. Lubin and Dr. Horiuchi were each 35% at fault for the plaintiff's injury. The jury awarded the plaintiff the sum of $800,000 for past pain and suffering and the sum of $650,000 for future pain and suffering over 30 years. "

Even though Supreme Court ruled that the settlement was effective, the Appellate Division stated a blackletter rule:  "Thus, a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record. "

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Full post as published by New York Attorney Malpractice Blog on December 21, 2009 (boomark / email).