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Worksheet: Defendant's Settlement

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Abstract: Most civil litigation is resolved by some agreement to settle the dispute, and in most civil litigation, the remedy is payment of money representing the value of the claim. As a lawsuit proceeds, the parties learn the strengths and weaknesses of each other's case and develop an idea of how much the case is really worth. This worksheet is designed to help you work with your lawyer toward a settlement.

NOTE

As you go through this worksheet you must not form any firm expectations about how much you might have to pay to settle the case. Your lawyer will have other information, opinions, and advice about your case for you to consider.

Also keep in mind that in settling the case, you are relieved of the time, expense, uncertainty, and stress of trial. That is worth something, too.


1. Why did the plaintiff sue you?

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

2. Is there any merit to the plaintiff's claim?

_______ Yes _______ No

3. Did you assert any claims against the plaintiff for your own losses or damage?

_______ Yes _______ No

4. Do you have liability insurance covering the plaintiff's claim?

_______ Yes _______ No

5. If you answered "yes" to Question 4, what are the policy limits?

Primary policy $_________________

Other policy $_________________

Umbrella policy $_________________

Second umbrella policy $_________________

TOTAL $_________________

6. What kinds of monetary losses is the plaintiff claiming? Check each one that applies; then note with a second check mark each one that your primary insurance policy covers.

_____ _____Wages for time lost from work $___________

_____ _____Travel or lodging expenses $___________

_____ _____ Value of item covered in contract $___________

_____ _____ Cost to repair damage to land or buildings $___________

_____ _____ Damage to personal property, such as equipment, vehicles, furniture, other
things that may be bought and sold $___________

_____ _____ Lost profits $___________

_____ _____ Future profits (some states don't allow this item) $___________

_____ _____ Paying someone else to complete contract work $___________

_____ _____ The replacement cost of equipment or a product $___________

_____ _____ Amount of loan plaintiff claims you owe $___________

_____ _____ Costs to repossess or foreclose on loan collateral $___________

_____ _____ Damages or settlement in another lawsuit $___________

_____ _____ Lawyer's fees and costs in another lawsuit $___________

_____ _____ OTHER (Please explain) $___________

________________________________________________________

________________________________________________________

TOTAL $___________

7. If your case involves a contract, does the contract have a clause requiring payment of interest? (A promissory note is a contract.)

Yes _______ No _______

8. If you answered "Yes" to question 7, what rate of interest is set forth in the contract?

________ % per year

9. If no rate is specified, enter the number 8 on the line in question 8.

10. How much time has elapsed since the alleged breach of contract?

______ years _____ months

If you filled in the blank for "months," divide that number by 12 (unless you entered a zero) and enter the result in the space below. This number represents the number of months as a fraction of a year. Use only the first three numbers after the decimals. If the fourth number is five or more, add one to the third number.

_______________

Add this fraction to the number of years: _________________
(Use this number in the calculation below)

11. Complete the following calculation:

a. Amount of plaintiff's claim (from Question 6) $________________
b. Amount of interest per year:

(i) Multiply interest rate (question 8) by 0.01
_________ x 0.01 = ___________

(ii) Multiply the result in (i) above by the
amount on line (a) $________________ per year

c. Multiply result from line (b)(ii) above
by the number of years calculated in
Question 10. $________________

12. If your case arises from a breach of contract, did the contract have a clause requiring payment of lawyer's fees?

_______ Yes _______ No

13. If you asserted counterclaims against the plaintiff, what are they and what are they worth?

_______________________________________ $_________________

_______________________________________ $_________________

_______________________________________ $_________________

_______________________________________ $_________________

TOTAL $_________________

14. If the case involves something other than a breach of contract, do you think the plaintiff is partially at fault for what happened?

_______ Yes _______ No

15. If you answered "Yes" to question 14, to what extent do you believe the plaintiff was at fault? Don't exaggerate, be realistic. The percentages will be use in the next question.

________ Mostly at fault (75%)

________ About equally at fault (49%)

________ Less at fault than I am (25%)

________ Just a little bit at fault (10%)

16. Now adjust the plaintiff's claim by the amount to which you believe the plaintiff is at fault and by the amount of your own claim against the plaintiff.

(a) Amount of plaintiff's claim (Question 6) $_______________

(b) Plaintiff's share of total fault (if applicable)

(i) Multiply the percentage corresponding
to your answer in Question 15 by 0.01.

____________ x 0.01 = ___________

(ii) Multiply the amount from line (b)(i)
by the amount on line (a) $_______________

(c) Subtract line (b)(ii) from line (a) $_______________

(d) Amount of your claim (Question 13) $_______________

(e) Subtract line (d) from line (c) $_______________

17. Now make the same adjustments, but start by subtracting out the amount of your claim against the plaintiff.

(a) Amount of plaintiff's claim (Question 6) $_______________

(b) Amount of your claim (Question 13) $_______________

(c) Subtract line (b) from line (e) $_______________

(d) Plaintiff's share of total fault (if applicable)

(i) Multiply the percentage corresponding
to your answer in Question 15 by 0.01.

____________ x 0.01 = ___________

(ii) Multiply the amount from line (d)(i)
by the amount on line (a) $_______________

(e) Subtract line (d)(ii) from line (c) $_______________

18. What is the smaller of the two results? $_______________

NOTE: Your state's law for computing damages may require you to make these two adjustments in the opposite order, which may well change the result. In the settlement analysis, however, you can use the lower amount and negotiate up from there if necessary.

This is the toward the low-end. Don't get hung up on it.

19. Add in the amount of interest fees you calculated in Question 11. If there is no contract requiring you to pay the plaintiff's lawyer's fees, skip this question.

Amount from Question 18 $_______________

Amount from Question 11 $_______________

TOTAL $_______________

20. Is the amount you calculated in Question 18 (or Question 19) satisfactory?

_______ Yes _______ No

21. Try to place a value on the risk of going to trial and losing. Consider:

trial expenses (ask your lawyer what range they'd be in)
the value of time you would lose if you had to attend trial (e.g., lost wages, child-care expense if you are a stay-at-home parent, and the like)
the emotional cost of being center-stage at trial and the uncertainty of the result (this can be difficult to express as a monetary value, but try)
the cost of stress during trial (also difficult to value)
Suggestion: for the emotional cost and stress of trial, use 10% of the amount in Question 19(A) or 19(B).

22. What dollar amount do you place on the risk of trial?

$________________

23. Add the amount in Question 22 from your amount from Question 18 or 19 to reflect these savings.

Amount set forth in Question 18 or 19 $_____________

Amount set forth in Question 22 $_____________

TOTAL $_____________

24. Is this amount satisfactory?

_______ Yes _______ No

Next Steps
Contact a qualified attorney to help you with
any potential litigation challenges.
(e.g., Chicago, IL or 60611)

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