Strategies For Settling Civil and Criminal Cases

By: Thomas F. Liotti and Edward Paltzik[1]

The strategies for securing favorable settlements in civil cases and winning

extraordinary plea bargains for criminal defendants are remarkably similar. It is always

surprising to hear civil attorneys who say that they cannot handle a criminal case and

criminal defense attorneys who say that they cannot handle a civil case. To be a great

settler in either realm of law requires knowledge and application of negotiating skills

combined with an approach different than that of the mediator or judge, both of whom

often look for middle ground in a Solomon-like manner. Indeed, judges typically say that

a good settlement is one where neither side is satisfied. On the other hand, the skillful

attorney is not satisfied with mere middle ground. Convincing your adversary to settle on

your terms is the art and science of negotiating. It is not a matter of luck or compromise.

It is more a matter of winning the case without a trial.

Conduct a Thorough Investigation

The first order of business is to learn all that you can about your case and the

other sides. Consider some of the important questions you will be confronted with after

you have been retained. What are the critical issues in the case that you hope to learn in

discovery, through examinations before trial or simply by way of a thorough interview

with your client? Do you need a private investigator to interview potential witnesses or

an accident reconstruction expert?[2] Are there psychiatric issues in the case that need to

[1]Thomas F. Liotti is an attorney with offices in Garden City, New York and a Village
Justice in Westbury. Edward Paltzik is an Associate in his firm.
[2] See People v. Barry Feinstein, alleged double vehicular homicide, (Suffolk County,
1994). Case was scheduled for Grand Jury presentment when defendant was represented
by other counsel. Mr. Liottis firm negotiated to take the case off of the Grand Jury
calendar and conducted an extensive investigation, which included the assistance of
private investigators and an accident reconstruction firm. The District Attorney elected
be addressed? If you invest the time, effort and thought into acquiring as much

information about your case as soon as possible, you will likely reap the rewards when it

comes time to negotiate a settlement or plea bargain because you will know more about

the case than the other side, thereby enabling you to operate from a position of strength.

In order to gain a knowledge advantage that will ultimately produce better

settlement or plea bargain results, you must conduct an exhaustive investigation. That

investigation should always include a thorough interview of your client in which you

leave no stone unturned. In many cases, you may need to question your client about

every aspect of their life, including personal or sensitive areas. However, in many

instances, merely interviewing your client will not suffice. That is where hired guns

come in - private investigators, accident reconstruction experts, psychiatrists, forensic

accountants and other specialists.

not to prosecute. Smith, Estelle Lander, Teen Won't Be Prosecuted In Crash, Newsday,
(Suffolk edition) January 7, 1994 at 35. See also, People v. Jesenia Vega, (Suffolk
County, 2007, Hon. James F.X. Doyle presiding). Defendant was accused of running
over and dragging her boyfriend to death following a drunken argument at a block party.
Mr. Liottis firm retained accident reconstruction firm. Accident reconstruction showed
that the defendant did not deliberately run over her boyfriend, which contributed to a
favorable plea to a reduced charge and sentence of 1 to 3 years. See Alfonso A. Castillo,
Hysterical Drunk, or Fearing for Life? Woman Faces Charges in Boyfriends Death.
Newsday, August 31, 2007 at A20. Long Island Woman Denies Charges In Death of
Boyfriend, August 30, 2007. See also, Laura Rivera and Joseph Mallia, Her Take on
Tragic Night, Driver Accused of Fatally Dragging Her Boyfriend in July Says She Was
Only Trying to Escape His Abuse, Newsday, December 27, 2007 at A22. See also, Eric
German, Guilty Plea In DWI Killing of Boyfriend, Newsday, March 17, 2009 at A4;
Associated Press, Woman Gets 1 to 3 Years for Boyfriends Dragging Death, New York
Post, July 1, 2009; Jennifer Sinco Kelleher, Woman Sentenced in Dragging Death of
Boyfriend, Newsday, July 1, 2009; Jennifer Sinco Kelleher, She Gets Prison in
Dragging Death - Girlfriend Gets 1 to 3 Years in DWI Accident, Newsday, July 2, 2009
at A16.
 Private investigators often prove invaluable for their ability to interview witnesses

and gather evidence. In cases where your clients behavior may be partially or entirely

justifiable as a result of a psychiatric or medical condition, you need to promptly pursue

that aspect of the case with the help of a psychiatrist or doctor.[3] Cases involving

accidents, crashes or other impacts will often need the perspective of an accident

reconstruction expert to show the other side that your client was not at fault. Cases

involving theft or other financial loss will often cry out for the services of a forensic

accountant.[4] Evidence is likely to degrade or disappear due to natural conditions

[3]People v. Kathleen Prisco, (Suffolk County, 2009, Hon. Robert Doyle presiding). Wife
accused of murdering husband, an attorney. On October 28, 2010 the defendant entered a
Not Guilty By Reason Of Insanity (N.G.R.I.) plea before the Hon. Robert Doyle. Mr.
Liottis firm had retained the services of a psychiatrist, who determined that the defendant
was suffering from a mental disease or defect, which diagnosis the District Attorneys
psychiatrists concurred with. See Andrew Strickler, Murder In Fort Salonga, Wife
Accused of Stabbing Husband, Newsday, October 31, 2009 at 1 and A3; Laura Rivera,
Request For Psych Exam, Newsday, November 2, 2009 at A14; Chau Lam, Husband
Was Gonna Frame Me, Newsday, November 3, 2009 at A2; Taylor K. Vecsey and
Cynthia R. Fagen, L.I. Wife Busted In Gory Slay, New York Post, November 1, 2009;
Vess Mitev, Wife Who Killed Her Lawyer - Husband To Undergo Exam, New York
Law Journal, November 3, 2009 at 1 and 4; Andrew Strickler, Wifes Mental State In
Question, Newsday, November 4, 2009 at A15; Carl MacGowan, Insanity - Plea Plan
In Killing, Newsday, October 19, 2010 at A24 and Andrew Keshner, D.A. Considers
Taking Plea In Case Of Murdered Lawyer, News in Brief, New York Law Journal,
October 19, 2010 at 1 and 4. . See Carl McGowan, Fort Salonga Murder Suspect
Admits She Stabbed Husband, newsday.com, October 28, 2010; Cark McGowan, Wife
Adits Stabbing In Insanity Plea, Newsday, October 29, 2010 at A18; November 1, 2010,
New York Law Journal, News In Brief, Andrew Keshner, Woman Who Killed Attorney-
Husband Will Not Face Trial.
[4]People v. Anthony Galasso (Nassau County, 2007, Hon. George Peck presiding).
Alleged Grand Larceny, 22 Count Indictment, concerning theft of $4.3 to $8 million in
escrow money from brothers law firm. Mr. Liottis firm retained the services of a
forensic accountant, who attributed only $600,000 of the alleged theft to the defendant.
The forensic accountants finding contributed to eventual compromise on $2 million as
the amount attributable to defendant and a favorable plea deal involving a 2 to 7
year sentence. See Alfonso A. Castillo, Bookkeeper Faces Charges, Newsday, October
25, 20007; Richard Weir, Hes Caught in Luxe Life Lies, Lawyers Bro Charged With
Skimming $4.3 million from Firm Fund, The Daily News, October 25, 2007 (lead story
Long Island News) NS 1; Peter Sloggatt, Indictments Handed Down in $4M Law Firm
Embezzlement, The Attorney of Nassau County, October, 2007 at 1 and Vesselin Mitev,
(exposure to weather), repairs, cleanup efforts or even due to wrongful conduct by the

other side (destruction of evidence). The passage of time is also likely to have an impact

on witnesses, as memories fade and witnesses move. Therefore, the decision of whether

to retain the services of an investigator, accident reconstruction expert, psychiatrist or

other specialist should me made as quickly as possible.

Consider Worst-Case Scenarios

Many dedicated attorneys are so well prepared that they cannot imagine losing or

that anything could possibly go wrong with their cases. That view of looking at your

case with rose colored glasses involves too much ego and not enough objectivity. This

kind of attitude is destined to fail. It is often difficult for clients to accept this kind of

objective analysis of their cases, but the attorney must nonetheless provide the client with

a realistic, fact-based assessment of the case. In a civil case, prior to entering settlement

discussions, the attorney must determine the extent of damages; consider whether liability

can be proven by a preponderance of the evidence; and measure comparative fault and

the percentage of liability, if any, for all parties. In a criminal case, prior to entering into

plea discussions, the attorney must consider all plausible defenses; analyze whether the

case is overcharged; account for the effect of pre-trial publicity[5] on potential jurors;

attempt to determine what charges, if any, are likely to come out of the grand jury; and

Firm: No Reason to Suspect Theft By Bookkeeper, New York Law Journal, November
13, 2007 at 1, 16 & 15. See News in Brief, Bookkeeper Who Stole From Firm Pleads
Guilty, New York Law Journal, March 3, 2008 at 4. See also Ann Givens, Bookkeeper
Sentenced, L.I. Briefs, Newsday, June 7, 2008 at A13 and Vesselin Mitev, Ex-
Bookkeeper Is Sentenced For Stealing From Kins Firm, New York Law Journal, June 9,
2008 at 1 and 3.
[5] See Thomas F. Liotti, Media at What Price, New York Law Journal, Perspectives
Column, September 1, 1994 at 2 and Thomas F. Liotti, Lawyers and Media - Are You
Savvy?, The Attorney of Nassau County, December, 2003 at 4, 5, 10, 11, 12 and 13.
ultimately, determine whether the prosecutor can meet their burden of proof beyond a

reasonable doubt.

Additionally, in civil and criminal cases, before an attorney can negotiate

effectively, the attorney must consider how well (or poorly) the clients case is likely to

be viewed by a jury, and even how the case is likely to be viewed by the presiding judge,

who will decide crucial pre-trial motions.

In civil cases, attorneys should research comparative verdicts and settlement

analysis. The New York Law Journal and Verdict Search[6] are helpful places to look.

Consider the high end and low end of the range of possible damages awards if the case

goes to a jury. In criminal cases, consider the minimum and maximum penalties that

your client faces if convicted after trial, and whether it is more likely that the penalties

imposed will be closer to the minimum or the maximum level in the event of a

conviction. Also consider whether your client faces any collateral consequences (such as

the loss of a professional license or other privilege) in the event of a conviction.

There are many attorneys who take the first money or plea offer made to them

instead of formulating a realistic demand. Generally, the worst settlement and plea

bargain offers are given to attorneys who never try cases. The best offers are given to

attorneys who do try cases. In other words, in order to extract the best settlement or plea

offer, prepare your case as if it is going to trial and make sure your adversary realizes that

you are prepared to go to trial. Having considered worst case scenarios, you will be

prepared to go to trial and ready to call the other sides bluff if they refuse to negotiate in

good faith. Other than the expenditure of additional time and money, there is little

[6] See Verdict Search (verdictsearch.com).

downside to being prepared for trial - and as discussed above, you want to invest heavily

in gaining knowledge about your case anyway.

Early Settlement Discussions: The Ballpark Analogy

Assuming the other side is willing to negotiate in good faith, it is good to be

proactive, so long as you remember to never bid against yourself. A proactive approach

to settlement can yield outstanding results. In civil cases, it is never too early to cultivate

a relationship with the defendants attorney and the assigned adjuster for the defendants

insurance carrier. In criminal cases, the same goes for the assigned Assistant District

Attorney or Assistant United States Attorney. As soon as you learn the identity of the

attorney for the other side, you should call, introduce yourself and lay the groundwork for

productive settlement discussions. You should also research your adversarys background

if possible.

In making a settlement demand or requesting a specific plea offer, know why you

are doing it. You must know what your parameters are the floor and the ceiling. You

must also understand that in the early stages of a negotiation, before concrete ideas have

been exchanged, there will likely be code language, to wit: I have some flexibility, I

have a little flexibility, or I have no flexibility. We prefer to use code language in the

form of the ballpark analogy. The ballpark analogy is perhaps the best example of the

code language that permeates the early stages of settlement and plea negotiations. As

settlement negotiations progress, the use of code language will naturally decrease as the

parties settle into a more fact-based, concrete discourse.

 The ballpark analogy applies to the earliest stages of settlement and plea

discussions. For example, if you have a wrongful death case that in your view is worth in

the high six figures, then you might say to the other side, The case is at least a six figure

case. In order for us to even have a discussion about settlement, I need to know that you

are acting in good faith and being realistic. In order to prove that to me, you need to

come into my ballpark. You do that by telling me that you recognize that this is a six

figure case. In another example, suppose you have a criminal case in which your client

is charged with Grand Larceny, a felony. You might say to the Assistant District

Attorney, We cannot accept any deal that involves a felony. In order for us to even

consider avoiding a trial, I need to know that you have a realistic view of the evidence

and the mitigating circumstances in this case. In either example, if you get the answer

you are looking for, you will know that you have at least one hundred thousand dollars

on the table or that you have at worst a misdemeanor plea offer on the table. You also

know that there is a basis for continued settlement or plea discussions. On the other

hand, if you dont get the answer you are looking for, you are prepared to proceed toward

trial because you and the other side are not in the same ballpark.

Once you determine that your adversary is prepared to be reasonable and to enter

your ballpark, it is appropriate to make a monetary demand or a specific plea demand.

Once you make your specific demand, do not bid against yourself - once you give a

demand do not change it until the other side bids against it. In a civil case if you are

representing the plaintiff, the idea is to get the other side to come up to your number. In a

criminal case, the idea is to get the prosecutors down to the offense and punishment level

that you and your client deem favorable under the circumstances. In any event, do not
allow your adversary to box you in to making a demand until you are comfortable doing

so. You should not be comfortable making a demand until you are sure that your

adversary is in the same ballpark. There is good reason for exhibiting caution in making

a demand. The demand that you make will follow you for the rest of the case. The

demand figure or proposed plea bargain establishes your expectations and affects the way

in which your adversary views your credibility and the strength of your case.

Advanced Settlement Discussions: Maximize the Strength of Your Case

Assuming that you and your adversary can agree that you are in the same

ballpark, an important hurdle has been cleared the two sides have agreed that there is a

reasonable basis for further negotiations. At that point, settlement or plea is far from

guaranteed, but no longer is the idea of settlement merely inchoate. Naturally, the code

language that guided the early stages of negotiation, the pre-ballpark stages, must now

be discarded in favor of a concrete, fact-based approach.

As you prepare for the more advanced stages of a settlement or plea negotiation,

anticipate favorable battleground topics. This way of thinking is no different than the

approach that a Presidential candidate may have. With so many states either solidly

Democratic or solidly Republican, Presidential candidates in recent years must be

pragmatic and realize that there are certain states that they will not be able to carry, no

matter how hard they try. Therefore, candidates identify so-called battleground states,

where the outcome could go either way and could turn on the smallest of details states

such as Ohio, Virginia and Missouri. As an attorney negotiating a settlement or plea, you

must find your Ohio, Virginia and Missouri. As you examine documents and speak to
your client, you will realize that certain topics will not yield beneficial results for your

client no matter how skillfully you present the issue to the other side. Instead, focus on

the battleground issues that you believe will inure to your clients benefit.

In civil cases, an excellent example of a favorable battleground issue that a

plaintiffs attorney may repeatedly encounter is life expectancy. In a recent wrongful

death lawsuit, we represented the widow of an elderly man who had been struck and

killed by a school bus while riding his bicycle.[7] The decedent was 76 years old at the

time of the accident. The school districts insurance carrier insisted that damages

(including lost pension payments, Social Security payments, lost salary from part-time

work and assorted other losses) be calculated on the basis of an 80 year life expectancy.

However, the carriers assertion of an 80 year life expectancy lacked any factual basis.

The decedent had been in perfect health before the accident, did not drink, did not smoke,

did not take any medication and exercised regularly. It seemed improbable that his life

expectancy at the time of death was only 4 years. In order to refute the carriers working

number of 80 years, we referred to the Actuarial Life Table at www.ssa.gov (The

Governments Social Security website), which revealed that the average life expectancy

[7] See Estate of Joseph Shannon v. The City of Long Beach and The City of Long Beach
School District (Nassau County Supreme Court, Index No. 010359/09). Settled for
$610,000 ($10,000 from the City of Long Beach and $600,000 from School District).
Wrongful death case. School bus hit and killed our client, a 76 year old retired teacher
who was riding a bicycle to church without a helmet. He lived for approximately 11
hours after the accident. Compensatory damages included loss of Social Security, wages
and benefits that he received for being a lecturer on cruise lines. Damages were also
shown by Department of Labor Statistics indicating that his life expectancy would have
been 85. See Laura Rivera, Citys Red Light To Stop - Sign Campaign, Newsday,
December 17, 2009 at A6; Joseph Kellard, School District Settles Death Suit, Family of
Cyclist Hit By School Bus Awarded $610,000.00, Long Beach Herald, March 25-31,
2010 at 1 & 3 and Joseph Kellard, E. Olive Homeowner Takes Down Signs, Long
Beach Herald, March 25-31, 2010 at 3; Verdict Search, New York, March 29, 2010
edition Vol. XXVII, Issue 39 at 19 & 20 and Laura Rivera, $600G Settlement In Bus
Fatality, Newsday, April 7, 2010 at A23.
of a 76-year-old male was almost 10 years. Using that figure, we were able to change the

dynamic of the negotiation by presenting the carrier with irrefutable documentary

evidence that the decedent would likely have lived perhaps twice as long as the carrier

contended. We were then able to argue that all of the damages figures should be, at a

minimum, doubled. Life expectancy arguments can be especially powerful because an

increase in life expectancy immediately increases damages across the board, regardless of

the precise amounts that are ultimately agreed upon for each specific category of

damages.

In addition to identification of battleground issues, you should search for and

identify hidden values. Hidden values may not emerge the first time you meet with

your client, or even in subsequent early meetings. But after you review all of the

documentation that your client provides and other materials gathered during the course of

your investigation, you may find items that could yield enormous gains in settlement

negotiation. The wrongful death lawsuit described above also provides us with a

wonderful example of a hidden value. During the course of our investigation in that case,

we learned that our client and the decedent received several free cruises annually on

Norwegian cruise lines in exchange for the decedents on-cruise service as a lecturer and

naturalist. At first glance, it would have seemed as though free cruises would not equate

to damages in a wrongful death action. However, our client, the surviving spouse, only

received the free cruises because of her husbands lecturing ability. With her husband

deceased, our client could no longer enjoy the benefit of free cruises, a perk to which she

had become accustomed. After carefully questioning our client about the nature of the

accommodations on the cruises and the locations of the cruises, we were able to
determine the value of the cruises by examining the Norwegian cruise lines website.

Coupled with the life expectancy increase, the value of the free cruises increased the

value of the ultimate settlement by a significant amount.

If you focus on battleground issues and hidden values, you will find consistent

success in maximizing the value of your case once you find yourself in the ballpark.

Conclusion

There is both an art and science to settlement and plea negotiations. The best

deals are struck by well-prepared attorneys who work their cases using a methodology

that includes both art and science.