Page 15 - NC Triangle Vol 7 No 3

hearing, maintaining good relation- ship with the Trial Court Administra- tor and their sta is highly advisable. TCA’s are a critical lifeline for an at- torney in any matter when dealing with the courts. ey can be your best friend or your worst enemy. All TCA’s are very protective of their judges and their busy court schedules. erefore, the TCA sta know if there is a criti- cal funding deadline involved when a structured settlement is used.
Before you contact the TCA, make sure all necessary parties are available for the hearing, including the struc- ture broker. Unlike many brokers, I attend all of my clients’ settlement hearings. I have found that both my clients and the court my being avail- able to answer unexpected questions about the structure planning. If your broker is unavailable, have an a da- vit from the broker ready well before the hearing. “All necessary parties” should include defense counsel, the minor, the child’s parent(s) and the Guardian ad Litem. In rare instances, the court will excuse the minor in exceptional circumstances. But, it is imperative that you contact the TCA well in advance to let the judge know of those reasons and obtain his/her permission to do so.
Many settlements involve a mutual- ly agreed to con dentiality agreement as negotiated by the parties. Do not as- sume the judge concurs. Many judges will excuse the minor, but again, the attorneys would be well-advised to let the judge know (through the TCA) well in advance. e court will need to accommodate a closed hearing or a hearing in chambers, so they need to know ahead of time. Again, know- ing the judge and whether he/she has an issue with con dentiality avoids serious problems on the day of hear- ing, and an embarrassing issue to be resolved with the clients. e simple fact that the parties agree to con den- tiality is not usually su cient for most judges.
In preparing for the hearing, and a er submitting the settlement doc- uments to the court, the attorney should properly prepare his or her cli- ents for the hearing itself. e client should know that, when the court ad- dresses the Guardian ad Litem and/or
All three judges would agree that preparation is key. In fact, each stressed that they strongly prefer to see nal drafts of settlement documents, including the Release and proposed Order of Approval, several days before the hearing.”
parents, they need to stand before the court. More importantly, they need to be prepared to respond orally to ques- tions from the bench. e judge is going to ensure that the GAL/parents fully understand that the settlement is a full and nal release of any and all future claims against the defendants. Likewise, the judge will want to know that the GAL/parents are willing to state in court that they believe the set- tlement is fair, reasonable and in the best interests of the child.
AT THE HEARING
On numerous occasions, I have been involved in hearings where the parent is still harboring doubts about the amount of the settlement or the fact that future medical care may be necessary. ese are issues that should be fully resolved between the attorney and his clients before the hearing. However, if there is still a reluctant client, let all parties to the hearing know ahead of time. Fre- quently, those issues can be resolved by the judge during the hearing, but the judge should know that is coming well before the hearing.
I also highly recommend that a court reporter be involved in all settle- ment hearings, whether in chambers or in open court. I also recommend that my clients order a copy of the transcript to maintain in their le for risk management purposes. Frankly, this is simple “CYA” in the event that years from now, an issue arises. It is unlikely the attorneys will be able to obtain the hearing transcript several years in the future.
On the date of the hearing, make sure the clients are present by the start of calendar call. If not, nd out what
AttorneyAtLawMagazine.com
the delay is and let the judge know. Always be aware and respectful of the fact that our courts are on extremely busy and on a tight schedule – un- expected delays are not appreciated by most judges and the TCA’s sta . However, they also know that the un- expected can happen. Just let them know if it does.
During the hearing, provide the judge with a short, plain statement of the facts and a summary of the inju- ries involved in the accident of issue. If future medical care is anticipated, inform the judge and explain how the settlement plan anticipates those fu- ture costs. If I know about those costs, it is my standard practice to recom- mend – at the outset of my work with the claimant -- that su cient funds be placed in the Clerk’s o ce to cover those costs if they are expected before the child reaches his or her age of ma- jority. And, make sure the proposed Order re ects that the judge has or- dered the Clerk to release such funds to the legal guardian at the time of medical services being rendered.
Explain the distribution if every penny of the total settlement amount: attorneys’ fees, litigation costs and expenses, liens and the amount dis- bursable for the bene t of the minor upon reaching their age of majority. If a structure is being used, I usually take over from the claimant’s counsel in order to present the details of the structure. ose include the present cost of the plan, the future periodic payments of the plan, and my work with the GAL/parents to arrive at a suitable plan upon the several options presented to them.
I then hand make sure to hand up for the judge’s review – and the court le – a summary of the claims paying and nancial strength ratings of the life insurer issuing the annuity. I also explain what the guaranteed internal rate of return is for the structure plan and the tax-equivalent rate of return. If your structure broker is not avail- able, make sure the broker prepares an a davit detailing for the court these items.
FOR MORE INFORMATION, CONTACT TACKER AT (919) 247-9070 OR TACKER@ SETTLEMENTPLANNINGLLC.COM. WWW. SETTLEMENTPLANNINGLLC.COM
15