Procedures for Settlement Conferences

A. Before the Settlement Conference – Initial Status Hearing, and Exchange of Proposals

The Court will generally hold an initial status hearing or conference call to set dates for the settlement conference and the exchange of pre-conference letters to opposing counsel and the Court. Counsel primarily responsible for representing the parties during the settlement conference must participate in this status hearing or call. Counsel will be expected to identify the individuals who will participate in the settlement conference with settlement authority on behalf of their respective parties (including any insurers) (i.e., not just available via phone), consistent with the requirements of this order. If a party is claiming an inability or hindrance to pay a judgment, counsel should raise it at this initial hearing and provide verification of that assertion prior to any settlement conference.

Consistent with the schedule that is set, plaintiff’s counsel must submit a position statement to defendant’s counsel and the Court, describing the nature of the action, the theory of liability, plaintiff’s demand and its reasoned basis, an itemization of damages, and citation to legal authoritysupporting the claimed damages.Plaintiffs are expected to include a demand that isnotwhat they expect to win at trial, but rather a number that takes into account the risk of loss and cost and time savings from settling before trial. Accordingly, for the purpose of settlement, the Court will not consider the availability of punitive damages. For cases involving personal, physical, emotional distress, or similar injuries, plaintiffs should include a list of comparable jury verdicts and/or settlements to support their demand amount.Additionally, Plaintiffs should provide a demand that is updated from any prior negotiations, i.e., not just stand on a prior position.

Defendant’s counsel also must submit a position statement to plaintiff’s counsel and the Court, describing the theory of defense and defendant’s offer, including an explanation for it. Defendants are expected to offer a number that doesnotassume that there will be no liability.As with Plaintiffs, Defendants should provide an offer that is updated from any prior negotiations,i.e., not just stand on a prior position.

The parties must include in their statements the names of all individuals who will be attending the settlement conference, along with their role. Defendants must also include whether any insurance representative(s) will be involved, and if so, also confirm their attendance.

Position statements should be no more than 10 pages each.Both parties’ counsel are required to provide the full set of the settlement letters to their clients, who must read them prior to the conference.On occasion, this exchange process itself will lead to a settlement or at least some further progress. Indeed, the parties should have multiple discussions about settlement between the date on which the Court sets the settlement conference and the actual date of the conference. The parties should further establish that each party has the necessary information and documents to engage in meaningful settlement discussions during the conference.

In preparing their statements, the parties are encouraged to consider whether there are any areas of agreement; whether there are any creative solutions (e.g., licensing agreement, allowing the use of a trademark, re-employment, payment plan, etc.); and whether there are any outstanding lien holders, particularly Worker’s Compensation, Medicare, or other medical liens (and in what amount).

In some circumstances, after reviewing the settlement letters, the Court will set a telephonic status hearing before the settlement conference, to further discuss the settlement positions. The Court may also separately contact counsel for one or both parties, and will ask the other party for permission before this happens.

Upon submission to the other side, the parties also are required to submit their statements to the Court by e-mail. All settlement correspondence should be sent to:Settlement_Correspondence_Jantz@ilnd.uscourts.gov

These statements are not to be filed with the Clerk’s Office, will not be made part of the Court’s record, and will not be admissible as evidence.

B. Persons Required to Attend the Settlement Conference

Individuals with settlement authority on behalf of the parties must personally participate in the conference, by whatever format the parties and the Court have decided upon (video or in person). If a party chooses to go forward with the settlement conference, it must come with authority to negotiate beyond the offer and demand in the settlement position statements,i.e.,the party cannot show up to the settlement conference and refuse to move from the position outlined in its position statement.

An insured party shall appear with a representative of the insurer who is authorized to negotiate and who has full authority to settle the case. If a party is an individual, that individual must personally attend (unless fully indemnified by another party and/or otherwise agreed to by all parties and the Court). If a party is an uninsured corporation or governmental entity, a representative of that corporation or governmental entity with authorization to negotiate and authority to settle the case must personally attend, understandably subject to later Board approval for certain governmental entities.

Failure to comply with these provisions may result in an order imposing sanctions, such as requiring the party in violation to reimburse the opposing party’s attorney’s fees and costs related to preparing for and appearing at the settlement conference. If a party has to “make a call” to get more settlement authority, that constitutes failure to comply with these provisions. In other words, whoever has the final say on settlement authority must actually participate in the settlement conference itself, either in person or by video.

C. Conference Format

In an effort to make the process as efficient and productive as possible, the Court will discuss with the parties in advance their preference for conference format, whether it be by video or in person. Both by video and in person, the Court generally holds a joint session with short opening remarks and questions by the Court, generally with no opening presentations by the parties. The Court encourages law firms to consider whether other members of their firm would benefit from observing the settlement conference, even if they are not actively participating.

This short, joint session will be followed by each party having private caucuses with the Court. The Court expects both the lawyers and the party representatives to be fully prepared to participate openly during these discussions. Statements made by any party during the settlement conference are not to be used in discovery and will not be admissible at trial.

D. Prepare for Success

If the parties are successful in reaching an agreement, they will be required to detail on the record all material terms of the agreement at the conclusion of the conference, so that the material terms are binding on the parties, even though a written settlement agreement will follow.