Getting the Client’s Consent to Settlement

At various times in the case, an attorney must discuss settlement with his client. More information is needed when the injured client is a child or someone who needs a structured settlement. The greatest amount of information is required when someone in the family receives governmental benefits or the victim will need Medicare benefits in the future. Here is an example of the information an attorney should gather in a common case involving a child victim:

  • Whether anyone in the child’s family is receiving any governmental benefits at all. (This pertains to whether the child has to have a special needs trust, which must be ruled out.)
  • Whether the child will be disabled in the future. (This has to do with the Medicare set-aside, which has to be ruled out.)
  • The total gross treatment costs to date.
  • The total treatment costs that the court will allow to go to the jury.
  • The balances claimed by any health care providers which probably have to be paid.
  • The reimbursement balances that are claimed by any heath insurers or governmental entities.
  • A copy of the “prognosis report” or estimate of future treatment costs.
  • The lawyer’s recoupable costs as of this date.
  • The anticipated costs of mediation.
  • The expected costs of litigation that are expected after the mediation through the end of trial.

With this information, the lawyer can create an accounting. This will tell him the child’s net settlement amount. He then will get a quote from the structured settlement specialist, which will tell him how much the child will receive during his college years and perhaps afterwards.

With that in mind, the attorney should call the parents discuss the advantages of settlement in general, the benefits of a structured settlement funded by an annuity, and the costs and risks of litigation. With proper advice, information, and specific financial details, a client can make an informed consent, and there will be no surprises as the case moves forward.