November 16, 2016 Leave a comment
I spent this morning before a chancellor obtaining approval for a minor’s personal injury settlement. Prior to the hearing, I followed a routine that virtually ensures success. First, I reviewed Chancellor Primeaux’s outline for minor’s settlements. Second, I reviewed attorney Nick Thompson’s Best Practices for Minors’ Settlements. Finally, I prepared my clients for what to expect at the hearing and used an outline I prepared several years ago that covers most every question I have heard a chancellor or defense attorney ask during a minor’s settlement.
I won’t guarantee that following this testimony outline will result in no questions from the bench, but it will go a long way toward getting the required testimony before the Court so it can make an informed decision. If you have any suggested additions or revisions, please send an email to firstname.lastname@example.org
Testimony Outline of Parent as Natural Guardian
- Please state your name for the record.
- What is your relationship to __________________________?
- Did you file a lawsuit on behalf of ____________________against _________________ alleging __________________?
- Is it correct that the general type of damages you alleged in the Complaint were for _______________________________?
- Ms. or Mr. __________________, are you in fact the mother/father of _______________________________?
- To the best of your knowledge, does anyone else claim to be the mother/father of ___________________?
- In your own words, please describe the incident where _______________ was injured.
- Are you aware that the Defendant(s) has denied all liability for the damages you alleged in your Complaint?
- Did ______________ receive medical treatment for his/her injury?
- Where did you take _________________ for medical treatment related to the injury?
- Please describe the medical treatment provided to _______________.
- Has ____________ finished all medical treatment related to this incident?
- If yes, do you anticipate any future medical treatment related to this condition?
- If no, what future medical treatment do you anticipate and what is the anticipated cost?
- Does ______________ have any permanent injuries/scarring?
- If yes, please describe the injuries/scarring.
- If no, please describe ________________’s current medical condition.
- Is it correct that the medical expenses claimed as a result of alleged negligence total ______________?
- Have these medical bills been paid? Who paid?
- To your knowledge, does anyone assert a lien against the proposed settlement?
- After the Complaint was filed and the Defendant(s) filed an Answer, did there come a point in time at which a potential settlement was reached?
- Are you familiar with the terms of the proposed settlement?
- Is it your understanding that in exchange for a dismissal of the lawsuit, the Defendant has agreed to pay of the sum of $_____________.
- Did you sign a legal agreement for us to represent you and _________________in this matter?
- Pursuant to that legal agreement, are attorney’s fees calculated as______________________________________?.
- Do you understand that attorney’s fees in the amount of $____________ will be deducted from the proposed settlement?
- Do you understand that Medicaid (or other lien) will require repayment of $_____________?
- Do you understand that after all attorney’s fees and _______________lien is paid, your son/daughter will receive $_________________.
- Are you satisfied with this settlement amount?
- Are you satisfied with the legal services which our firm has performed for you?
- Do you understand that by settling this case, you are giving up ____________________’s right to a trial by a jury of your peers in ____________ County, Mississippi?
- Do you understand that if you did not settle and the case were to go to trial, _______________ might potentially recover more than the amount you are agreeing to settle this case for?
- Do you understand that if you did not settle and the case were to go to trial, _____________________ might potentially recover less than the amount you are agreeing to settle this case for and in fact you might recover absolutely nothing at all?
- Do you understand that after a trial by jury, you would be entitled to appeal to the Mississippi Supreme Court and they could review the jury verdict?
- Do you understand that by settling, you are giving up _______________’s right to have a jury decide his/her case and ______________’s right to have the jury verdict reviewed on appeal?
- Do you understand that by agreeing to settle this matter, Cause No_______________, currently pending in the Circuit/County Court of ____________, County Mississippi will be dismissed with prejudice?
- Do you understand that when the case is dismissed with prejudice, neither you nor ________________can sue this Defendant again based upon this incident even if you later discover additional facts or circumstances regarding this incident?
- Do you understand that when the case is dismissed with prejudice that any action you or ____________ currently have against the Defendant will be forever barred?
- Do you understand that the Defendant continues to deny all liability and is paying the settlement to buy his/her peace and to resolve the matter?
- Do you understand that the money you receive is not your money, but rather it is ____________________’s money?
- Do you understand that the money you receive is to be used for the sole benefit of __________________________?
- Do you understand that the settlement money will be held in a restricted guardianship account (if applicable)?
- Do you understand that you will be required to petition the court for approval to spend any funds held in the guardianship?
- Having considered all of this, do you believe that it is in _____________________’s best interests to settle this case on these terms?
Questions commonly directed to the Plaintiff’s attorney by the Court:
- How long have you practiced law and do you handle this type of case regularly?
- Do you believe that this settlement is in the best interests of ________________________? Why?
- Why do you think the outcome of this case is doubtful?
- Do you think your fee is reasonable in this matter?
- How many hours have you devoted to this case?
- What exactly have you done in this case (discovery, depositions, motions, etc.)?
- If approved, where do you intend to deposit the ward’s portion of the settlement funds?
- How long do you need to have the ward’s money deposited in the account and have the bank acknowledgement filed in this case?
One last thing…..always bring the minor to the hearing so the Court can verify the condition of the minor.