In
the interested of efficiency, the Court strongly encourages the court to engage
in a settlement conference with the assigned magistrate judge. To the extent
the parties request a settlement conference with Judge Kness, the Court follows
the following procedures:
The
Court believes the parties should fully explore and consider settlement at the
earliest opportunity, which may allow the parties to avoid the substantial
cost, expenditure of time, and stress that often accompany the litigation
process. Even for those cases that cannot be resolved through settlement, early
consideration of settlement can allow the parties to better understand their
dispute and streamline the issues to be litigated.
The
instructions below must be followed in preparing for the settlement conference.
Any party who wishes to vary any of these procedures must make an appropriate
request to the Court before the settlement conference.
1. Pre-conference
Demand and Offer Letter Exchange. At least 7 business days before the
settlement conference, the plaintiff shall submit a written itemization of
damages and settlement demand to the defendant, with a detailed explanation of
why the demand is appropriate (and list the names or the clients and lawyers
who will attend the conference). No later than 3 business days before the
settlement conference, the defendant shall submit a written offer to the
plaintiff, with a detailed explanation of why the offer is appropriate (and
list the names of the clients and lawyers who will attend the conference). If
settlement is not reached through this process, the defendant shall email
copies of both side’s letters to Judge Kness’s chambers on the third business
day before the conference (email to Proposed_Order_Kness@ilnd.uscourts.gov). Do
not file copies of these letters with the Clerk or on the docket.
2. Attendance:
Parties with full and complete settlement authority must personally attend the
conference. This means that if a party is an individual, that individual must
personally attend; if a party is a corporation or governmental entity, a
representative of who is authorized to negotiate and who has full settlement
authority must personally attend; if a party requires approval by an insurer to
settle, then a representative of the insurer who is authorized to negotiate and
who has full settlement authority must attend. Having a client with authority
available by telephone is not an acceptable alternative, except under
exceptional circumstances and with advance permission of the Court.
3. Conference
Format. The Court generally will follow a “mediation” format: a joint
session with the Court in which each side makes a brief opening presentation to
the other side, followed by private meetings by the Court with each side. The
Court expects both the lawyers and the party representatives to be fully
prepared to participate. The Court encourages all parties to keep an open mind
to reassess their previous positions and to discover creative means for
resolving the dispute.
4. Statements
Inadmissible. Any statements made by any party or attorney during the
settlement conference will be inadmissible at trial. That rule should encourage
parties and attorneys to be frank and open in their discussions. The Court
expects the parties to address each other with courtesy and respect.
5. Issues
to be Discussed. Parties should be prepared to discuss the following at
the settlement conference:
a.
What are your goals in the litigation and what problems would you like to
address in the settlement conference? What do you understand are the opposing
side’s goals?
b.
Do you understand the opposing side’s view of the case? What is wrong with
their perception? What is right with their perception?
c.
What are the points of factual and legal agreement and disagreement between the
parties?
d.
Does settlement or further litigation better enable you to accomplish your
goals?
e.
Are there possibilities for a creative resolution of the dispute?
f.
Are there outstanding lien holders or third parties who should be invited to
participate in the settlement conference?
Before
the settlement conference, counsel shall provide a copy of these instructions
to the client and shall discuss the points contained herein with the client.
6. Other
Information. Parties and their counsel should appear in Judge Kness’s
courtroom on the date and time set for the settlement conference. In
anticipation of a settlement, the parties should review and be prepared to
complete the attached Settlement Checklist/Term Sheet at the conclusion of the
settlement conference. The parties should also review the “Settlement Dismissal
Orders” link on Judge Kness’s website for information on how to draft proposed
dismissal orders.