New York City Personal Injury Law Blog

You must be Ready to Discuss a Settlement

Posted on Jun 15, 2015 in Legal Terminology

Did you know that during a pretrial conference, if one of the sides is not ready or prepared to discuss a settlement, the judge can actually dismiss the case? Why is that?

What is Expected at a Pretrial Conference?

A personal injury case is nearing the trial date and scheduled for pretrial conference. The judge will try to have both parties reach a settlement. He turns to the plaintiff’s lawyer who represents the injured victim and asks what he needs to settle the case. The lawyer will quote a settlement amount, and then the judge will ask the defense what they are prepared to offer in this case.

If the judge dismisses the case, you lose by default

If the judge dismisses the case, you will lose by default.

If the defense lawyer says that this is the first time he is hearing about any settlement demands from the plaintiff, and he is not prepared to have any settlement discussions whatsoever – this could infuriate the judge. In fact, the judge could even dismiss the case.

When the attorneys arrive in court for the purposes of a pretrial conference, the entire purpose is to try to invoke settlement negotiations. The judge will see if the defense has evaluated the case, whether they have a position and whether they are willing to talk or not.

Only then will the judge make an intelligent decision about whether to adjourn the matter to facilitate further discussions or to set the case down for trial. If the defense attorney does not have any information and has not reviewed the case in terms of holding settlement discussions, then he is obstructing the judge and wasting the court’s time. The judge will reprimand the defense lawyer and tell him he was supposed to come prepared and have an idea about settling the case.

The Judge has the Authority to Dismiss the Case

Apart from this, one of the other things available to the judge is that he can literally dismiss the defense’s answer, or he can dismiss their claim. This would mean the plaintiff would have won by default. However, does this actually happen? Well, it is very rare, but it has happened, and it is within the judge’s discretion to dismiss the case if the defense is not prepared or does not want to negotiate.

What happens if the plaintiff’s side is not prepared or willing to negotiate? The judge will be equally angry, and one of the options available to him would be to dismiss the victim’s claim and his case. This would mean the defense has won, and the victim will not have a chance to obtain any compensation for their claims. The victim will then have to go through the appeals process, which is time consuming and complicated. They would also be quite upset with their attorney as well and could possibly be grounds for a legal malpractice suit depending on what happens.

This almost never happens though. But it has before.

Not Prepared

All these legal issues arise all because one side or the other was not prepared to go ahead with the settlement discussions, when the whole purpose of the pretrial conference was to see if the case can be settled through negotiations. Avoiding a trial is worth pursuing.


  • Shirley Farrior

    Can a settlement be reached even after the judge has dismissed the case? Example: A city successfully had the case against them dismissed but then turned around and offered a settlement to the plaintiff.

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