Page 14 - NC Triangle Vol 7 No 3

TACKER LECARPENTIER | Settlement Planning
Settlement Hearings: A Primer
Too o en settlement hearings, especially those involving mi- nor children are treated by at- torneys as routine, ministerial mat- ters. Handling these hearings is o en pushed down to the newest attorneys in a law rm. While such hearings are indeed a great opportunity for young attorneys to get into the courtroom, it is a mistake to treat them as routine.
In over 27 years appearing in hun- dreds of settlement hearings (espe- cially my last 15 years as a settlement planner), I have learned two impor- tant lessons: (1) know your judge and (2) be prepared. is is not to suggest forum shopping. But knowing your judge as much as possible can help avoid unexpected problems arising at the hearing.
e panelists were North Caro- lina Superior Court Judges Wayland Sermons, (Judicial District 2), Mar- vin Blount (3A) and Allen Baddour (15B). e panel was a great success, and the judges and I hope to repeat it for North Carolina judges and attor- neys in the coming years.
PREPARATION IS KEY
All three judges would agree that preparation is key. In fact, each stressed that they strongly prefer to see nal dra s of settlement docu- ments, including the Release and proposed Order of Approval, several days before the hearing. is is a great opportunity to avoid situations where (1) you may not know the proclivi- ties of hearing judge and (2) then you get to the hearing and nd the judge
bene t levels for the minor. Many de- fendants and liability insurers refuse to issue any settlement checks includ- ing the structure funding without a le-stamped Order in hand.
Once the total settlement amount has been agreed to, the rst task is to calculate the amount of attorneys’ fees, litigation costs and expenses, and any and all liens. e remain- ing amount will presumably be dis- tributed for the bene t of the minor. en, the client and the attorney must decide whether those funds will be placed in the Clerk of Court’s o ce, into a structured settlement or a com- bination of both. Because the judge must determine that the settlement is “in the best interests” of the minor, few if any judges will approve a settle-
ment involving any risk to the funds being held for the minor’s bene t. us, most judges will only approve one of these options.
Many judges likewise prefer a structured settlement -- especially in larger settlements -- because (1) there is a guaranteed rate of return that is almost always far in excess of what is paid by the Clerk and (2) they are wary of paying an entire settlement amount at to a very young adult at age 18. A structure provides the option of spreading out those payments for col- lege and/or getting the young adult started o in life nancially. Again, knowing what your judge prefers is helpful to avoiding problems in the middle of a settlement hearing.
BEFORE THE HEARING
e next major task is to get your hearing scheduled. Again, if a struc- ture is involved, this is a critical be- cause of the funding deadline. Let us know if we can help. As with any
In April, I had the privilege of mod- erating a Judicial Panel on Settlement Hearings at the National Structured Settlement Trade Association’s An- nual Meeting in Charleston, SC.
has issues with the settlement details. When structured settlements are in- volved, this is particularly trouble- some because every structure involves a funding deadline to preserve the
ATTORNEY AT LAW MAGAZINE · NORTH CAROLINA TRIANGLE VOL. 7 NO. 3 14