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Once the case has been filed and the other party has filed a response and the required financial disclosures (ideally the mandatory Rule 68 disclosure of documents has occurred), a settlement conference with the judge will be scheduled.

The basic idea of the settlement conference is that the attorneys present areas of agreement and their client’s position with respect to the issues on which there is no complete agreement and the judge gives feedback to the attorneys.  This feedback is not binding on anyone but establishes what the judge would likely do (with a high degree of probability) if the evidence were introduced at trial as described by the attorney.

Some input from the judge carries more weight: if the judge has a specific way to assess income earned by a self-employed person and says that they will average the last three years of income shown on the tax return, unless your case has some rare twist, you can assume this to be true in your settlement negotiations. The same is true with a judge who indicates that they won’t order parents to pay for college. However, if one parent is seeking to move out of State with the children, the judge most likely will be able to give only generalized input.

Before the pandemic essentially closed the physical courthouse, this conference would happen at the judge’s courtroom.  Some judges held their conferences in the courtroom with the attorneys at the bench talking to the judges and the parties in the courtroom, not at the bench but hopefully able to hear the discussion.

Other judges had the settlement conferences in their chambers (a fancy word for their office) with only the attorneys present. In my experience, this dramatically reduces the posturing and promotes a frank and productive discussion.

The standard settlement conference order requires the parties to appear in person at the conference, but most – but not all – judges allow parties to be available to the attorney instead of appearing, but it is best to ask for permission instead of beg for forgiveness.

The most dramatic example of this involved a judge (now retired) who asked an attorney if his client was present at the courthouse.  When the attorney answered in the negative, the judge sarcastically asked if the client thought he was more important than the judge. When the attorney responded that the client, a cardiac surgeon, had been called into emergency surgery. The judge then ordered the surgeon client to pay the other party’s attorney’s fees for appearing at the conference. Of course the lesson is for the attorney – at the outset of the conference, he should have explained the situation and thrown himself on the mercy of the Court. I am glad that attorney took one for the team.

With all conferences now by Zoom and potentially continuing that way, the parties are not invited to the conference and not permitted to listen in on the Zoom call and there is no requirement that the party be available to the attorney by telephone during the Zoom conference.

At the end of the first settlement conference, another settlement conference will be scheduled, between 2 and 8 weeks later, depending on the case. The time between the settlement conferences is for the parties to find out information from each other or from third parties and to continue or start settlement discussions between the attorneys.

The case will most likely be set for trial after 2 or 3 settlement conferences.

The keys to an effective conference are a clear communication between client and attorney of issues and priorities and establishment of reasonable expectations by the attorney with the client.