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Pro Se Tips and Tactics

In this column, I discuss things you might consider in trying to settle a case you have filed. As always, I assume you have filed a civil rights case in federal court, challenging as illegal some prison condition or practice that has been imposed on you.

1. Why Settle?

There are many reasons you may want to settle. One of the main reasons people settle lawsuits is to get some certainty _ no one really knows how a case will come out at trial, and settlement offers a way of controlling the outcome. Once you settle, you know what you'll get, and you know it sooner than if you go to trial. Settlement also eliminates the possibility of losing on appeal even if you win at trial. A good settlement can give you certainty and closure.

Settlement can also save the trouble and tension of going to trial. Preparing for trial, being a witness, arguing a case to a judge or jury are all time-consuming, stressful activities. If you can get something decent by settling, you can skip at least some of the hassle of litigation.

In addition, you can sometimes get something in settlement that you might not get if you went to trial. For example, if you have filed a lawsuit asking that you be compensated because of a prison practice that violated your rights in the past, a judge or jury may not (for technical reasons I cannot cover here) be able to order the prison to change its policies. As part of settlement, however, you may be able to persuade prison authorities to change (or to write) a policy that could prevent the same thing from happening to someone else.

2. The Negotiation Process

The mindset you need in trying to negotiate a settlement is different from a litigation mindset. In litigation, you often are trying to outsmart the other side, trying to get every legitimate, legal advantage you can. By contrast, in trying to settle, you need to think about what the other side might want or need, and try to figure out how to give it to them while also getting what you most need.

For example, let's say you have filed a case in which you are saying you were put into segregation illegally. You are seeking some money, but you also want your record cleared so that you won't lose good time or be hurt in your chances for parole. The prison officials probably have different interests than you do. They might want to pay you very little money, because they don't want other prisoners trying to get a lot of money if something similar happens again. But they may not care as much as you do about clearing your record, because that doesn't cost them anything and they aren't as worried about the precedent. So, if clearing your record is very important to you, you can craft a strategy in which you will trade some or all of the money you might have gotten for the agreement to clear your record. In this process, you are not trying to gain an advantage over them, but rather agreeing to give them something they want in exchange for what you really want the most.

Negotiation often takes some creative thinking. I have been involved in cases in which people have exchanged ideas for settlement and both sides think there is no chance for a settlement, but later one side or the other thinks of a different way to approach a problem and this leads to settlement. Try to find out what the other side's real problems and needs are that are preventing them from settling, and then try to address those problems in a creative way without selling out your basic needs.

As I've said, certainty and closure are major reasons to settle, but they also cost something in the negotiation process. The other side will not settle for as much as you might have gotten if the trial goes all your way, because you are getting the certainty of getting something and ridding yourself of the worry that you will get nothing. On the other hand, you should not settle for less than you are very likely to get if the trial goes medium well for you, because by settling the other side is getting certainty as well, the certainty that the jury will not make a really big award.

In thinking about settlement in a case where you are seeking money, it is crucial for you to be as realistic as possible about what your case may really bring you in terms of dollars. One role of a lawyer, if you had one, would be to give you an objective evaluation of the "worth" of your case, i.e. what a jury or judge would be likely to give you if you win. Some prisoners "overvalue" their cases by quite a lot (that is, they expect much more money than they can possibly get), and that is one reason lawyers will sometimes decline a case. It is hard to do, but if you are representing yourself, you should try to be as objective as you can in looking at how much money you are really likely to get. If you simply spent three unjustified days in the hole, you are not going to get tens of thousands of dollars. But if you were seriously abused, especially over a long period of time and you can prove that, you might be able to win quite a lot of money.

One method lawyers use to figure out how much money cases will bring is to research jury verdicts in comparable cases. Prison Legal News plans to gather information on prison cases from around the country to help pro se's and lawyers make these judgments. Past issues of PLN have reports on the amounts of some jury verdicts, and there will be more reporting of verdicts in the future. Look at these carefully as you try to decide what you are likely to get from your case.

If you have a strong case, don't settle too early. If you have fairly good claim, wily state officials may offer you some money early on in exchange for a release of all claims. A quick offer like this may mean that they think you have a strong case and they want to settle it early, and cheaply. The offer may seem like a lot of money to you, but consider whether the case could be worth more if you don't settle right away.

Think carefully about what is really likely to happen at trial, and don't be afraid of going to trial if you do have a good case and you aren't getting a decent settlement offer from prison officials. You should never file a case without a legal and factual basis, of course, but even among good cases some are better to go to trial on than others are. If you have a solid legal basis, good documentation, and strong witnesses and you were seriously injured or abused, consider in your settlement negotiations that the prison officials may not really want to go to trial, even though they may be acting as if they want to try the case. On the other hand, if your case is meritorious but you may have some problems of proof, you should present yourself in negotiations as being fully willing to try the case, while in your mind you "discount" the settlement value based on your known problems if you go to trial. Again, the greatest favor you can do yourself is to be as objective as possible about the strengths and weaknesses of both your case and the other side's case, and how the case will look to a judge and jury.

In some places, it may be very hard for prisoners to negotiate a settlement that includes money. Some prison officials are very reluctant to pay any money to prisoners in settlement of lawsuits, apparently because they believe this will cause other prisoners to bring lawsuits and try to get money as well. This is obviously a barrier to a rational, negotiated settlement process, and if it is the posture of the officials in your case, you may not be able to come to a fair settlement and will have to go ahead with trial. One possible tactic is to try to convince the prison officials that your case is unique (if it is) and so it will not lead to other prisoners trying to get money for the same thing.

3. Enforceability and other things to watch for

If you decide to settle your case, pay careful attention to how your settlement can be enforced if the defendants do not do what they said they would do. If at all possible, you want your settlement to be included in a judgment or order in the court where the case is being litigated. If it is in a judgment or order, you can use the power of the court to enforce it. Federal Rules of Civil Procedure 69 and 70 provide a process for enforcement of both money judgments and requirements that defendants perform a "specific act," such as removing something from a prisoner's record.

These days, many prison officials will say they do not want a settlement to include a federal court judgment or order. They may offer a contract, a letter of understanding, or other forms of promises that do not amount to court orders. One form of this kind of proposal is the "private settlement agreement" referred to in the Prison Litigation Reform Act, 18 U.S.C. § 3626(c). That provision allows no direct federal court enforcement of a private settlement agreement, but does allow it to provide that if the agreement fails the federal lawsuit will be started over.

A lack of a court order or judgment is definitely a disadvantage. Contracts or other types of settlement documents may be enforceable under contract law, usually in state court, but it is best to have a settlement be in the form of a judgment or order. A judgment or order in your case is directly and specifically enforceable before the judge in the case you had already started, not in some new case you must file just for enforcement. In addition, contract law presents the prison officials with some defenses to enforcement in a new case trying to enforce the contract that they would not have in the case of a judgment or order in the original case.

You should think about and weigh the defendants' insistence on not having a judgment or order along with other settlement factors in deciding on your settlement strategy. If the prison officials' main goal is to avoid a federal court order and they will just not give up on that, then think about asking for more in other areas. If you agree not to insist on a federal court order, you might be able to get them to give you, in trade, more of what you want. Or, if you must have a federal court order and they don't want it, you may have to settle for less so you can get that all-important order. As always, if you just can't agree on this issue, you will have to face going to trial.

If your case is in federal court, watch carefully for a settlement offer from prison officials that is called an "offer of judgment." Federal Rule of Civil Procedure 68 provides that a defendant may make an offer of judgment at any time up to 10 days before trial. An offer of judgment is a formal offer to settle a case for the amount or conditions stated in the offer of judgment. Rule 68 says that if you get an offer of judgment under this rule and decline it, and you then do not get more at trial than was offered, you "must pay the costs incurred after the making of the offer." In other words, you will be penalized for not accepting a good offer made under this rule. So, if you do get a rule 68 offer of judgment, think carefully and objectively about whether you are likely to do better if you go to trial. It is not easy to figure out exactly what you should get at trial, but if you have been objective and done research about the worth of your case, you should have a pretty good idea about whether an offer of judgment is close to what you should get.

There are two things you should be aware of that government officials will almost always want as part of a settlement. One is that they will not admit they did anything wrong. This is a normal part of most settlements, and you should not worry that you are giving up anything special by agreeing to it. If it is crucially important to you that the government admit that it wronged you, you can try to hold out for that, but the case is unlikely to settle if you insist. The other is that the government will want a release of all possible claims against them that came from, or could come from, the incidents you are suing about. You should read any release you sign very carefully to make sure it doesn't go beyond what the case is about, but again this is a normal part of the settlement process and you will be unlikely to settle unless you agree to it. Government officials have no incentive to settle unless they are sure there will not be another lawsuit about the same incidents.

This column provides general information about the law, and does not intend to give you specific advice about your case. As always, you should do independent research based on the facts of your case. John Midgley is a staff attorney at Columbia Legal Services in Seattle, Washington.

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