Yazzie v. Fezatte et al
ORDER by Magistrate Judge Kevin R. Sweazea RESETTING Settlement Conference for May 18, 2021 at 09:00 AM via Zoom. The Court will send out invitations for the Zoom proceedings approximately one week before the settlement conference. Telephonic Status Conference set for April 14, 2021 at 09:00 AM. Consult Order for associated deadlines. (atc)
Case 1:16-cv-00472-JAP-KRS Document 172 Filed 02/16/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SETH FEZATTE; and
WERNER ENTERPRISES, INC.,
ORDER RESETTING SETTLEMENT CONFERENCE AND STATUS CONFERENCE
To facilitate a final disposition of this case, the Court will conduct a mandatory
settlement conference in accordance with D.N.M.LR-Civ. 16.2. IT IS THEREFORE
All parties and their lead trial counsel shall appear for a settlement conference by Zoom
on May 18, 2021 at 9:00 a.m. The Court will send out invitations for the Zoom proceedings
approximately one week before the settlement conference. The parties shall also appear for a
telephonic status conference on April 14, 2021 at 9:00 a.m. to confirm their readiness to
participate in the settlement conference. The parties shall dial (888) 398-2342 and enter access
code 8193818 to join the conference.
At the settlement conference, an insured party or an uninsured corporate party shall
appear by a representative with full and final authority to discuss and enter into a binding
settlement (this requirement cannot be satisfied by hiring a local representative if the appropriate
representative resides in another state). See D.N.M.LR-Civ. 16.2(c). A party’s personal
presence increases the efficiency and effectiveness of the process by reducing the time for
communication of offers and expanding the ability to explore options for settlement. A party’s
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request to be excused must be made in writing seven (7) calendar days before the conference.
See D.N.M.LR-Civ. 16.2(d).
Experience teaches that settlement conferences are often unproductive unless the parties
have exchanged demands and offers before the conference and made a serious effort to settle the
case on their own. Accordingly, on or before April 27, 2021, Plaintiff’s counsel shall serve on
defense counsel a letter that sets forth at least the following information: (a) a brief summary of
the evidence and legal principles that Plaintiff asserts will establish liability; (b) a brief
explanation of why damages or other relief appropriately would be granted at trial; (c) an
itemization of any claimed damages, including any special damages—i.e., damages for
pecuniary losses, such as past medical expenses, lost wages, or property damages—that states the
exact dollar amount Plaintiff is claiming for each category; and (d) a settlement demand.
On or before May 4, 2021, defense counsel shall serve on Plaintiff’s counsel a letter that
sets forth at least the following information: (a) any points in Plaintiff’s letter with which the
defense agrees; (b) any points in Plaintiff’s letter with which the defense disagrees, with
references to supporting evidence and legal principles; and (c) a settlement offer. Defendants
shall also include any proposed form of release or settlement agreement with Defendants’ letter
to opposing counsel.
If Defendant disagrees with the amount of special damages Plaintiff has claimed,
Defendant’s counteroffer must state the dollar amount Defendant believes to be correct for each
category rather than expressing general disagreement and dissatisfaction. For example, if
Plaintiff claims $1,000 in past medical expenses, and Defendant believes the correct amount of
past medical expenses is $500, Defendant’s letter must clearly state that Plaintiff’s past medical
expenses amount to $500.
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If a dispute about special damages exists, counsel shall: (1) meet in person or
telephonically before the settlement conference to try to resolve the dispute (an exchange of
emails or correspondence is insufficient); and (2) if the dispute cannot be resolved, counsel must
bring all documentation supporting their respective positions on special damages to the
Each of these letters typically should be five (5) or fewer pages, and counsel must ensure
that each settlement conference participant reads the opposing party’s letter before the settlement
conference. If settlement authority for Defendant is provided by a committee, Defendant must
ensure that the committee reviews Plaintiff’s letter before finalizing settlement authority. Those
attending the settlement conference and reviewing the letters exchanged must treat as
confidential the information discussed, positions taken, and offers made by other participants in
preparation for and during the conference.
On or before May 11, 2021, Plaintiff’s counsel shall provide the Court copies of the
letters exchanged between the parties. In addition, each party must provide the Court, in
confidence, a concise letter (typically no more than seven (7) pages) containing a brief summary
of the facts; analysis of the applicable law, including evidentiary issues; strengths of the case;
weaknesses of the case; status of discovery; identification of any pending motions; an outline or
itemization of damages or relief requested; status of settlement negotiations to date; and the
names of the individuals who will be attending the conference and in what capacity. This
confidential letter must not be a mere restatement of the letter served on opposing counsel. All
matters communicated to the Court in the confidential letter will be kept confidential, and will
not be disclosed to any other party, or to the trial judge. Once the Court reads the letters
provided, it may speak with counsel ex-parte if the Court needs additional information to assist
in facilitating settlement.
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Further, if any party has video or audio recording(s) of the incident upon which this
action is based, that party must send the Court a copy of the recording(s) no later than May 11,
2021. The parties shall submit these letters and other materials to the Court, preferably by email, (firstname.lastname@example.org), or, alternatively, by facsimile (575) 528-1695,
or by mail, as long as the materials arrive by the above deadline. It is not necessary to send an
original if a document is sent by e-mail or facsimile.
At the settlement conference, all of the settlement conference participants will first meet
together to discuss procedures for the settlement conference. Counsel will not be required or
permitted to give opening statements during the initial meeting with the Court and the other
settlement conference participants. Upon the conclusion of the initial meeting, separate,
confidential caucuses will be held by the Court with each party and the party’s representative.
Counsel and parties should be prepared to discuss the factual and legal details of their cases.
Attached is an outline for counsel to review with their clients before the settlement conference to
make the best use of the time allotted.
Telephonic status conference:
April 14, 2021 at 9:00 a.m.
Plaintiff’s letter due to Defendant:
April 27, 2021
Defendants’ letter due to Plaintiff:
May 4, 2021
Confidential position papers (and any audio/video recordings)
due to Court:
May 11, 2021
May 18, 2021 at 9:00 a.m.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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SETTLEMENT CONFERENCE PREPARATION
Experience shows that in negotiations the party who is best prepared usually obtains the best result.
Settlement conferences can be more efficient and productive if all parties and counsel are prepared.
The following are some areas to consider to aid in the effectiveness of this settlement conference.
The Court will privately caucus with each side in a typical mediation format. The
judge may address your client directly.
Parties with ultimate settlement authority must be personally present.
Although the Court will typically meet with both sides in the courtroom together to
go over ground rules at the beginning of the conference, there will be no opening
statements or other discussions of the merits of any party’s claims or defenses
during that initial meeting.
What remedies are available resulting from this litigation or otherwise?
Is there any ancillary litigation pending/planned that affects the value of the case?
Do you have enough information to value the case? If not, how are you going to
get more information before the conference?
What issues (in and outside of this lawsuit) need to be resolved? What are the
strengths and weakness of each issue? What is your most persuasive argument?
Do attorney’s fees or other expenses affect settlement? Have you communicated
any lack of information to the opposing side?
Are there outstanding liens? Have you verified amounts and whether they are
negotiable? Do you need to include a representative of the lien holder? If so,
contact the Court immediately.
Is there valid insurance coverage? In what amount? If coverage is at issue, or the
amount/type affects the settlement value, have you notified the other side? Do you
need to include a representative from more than one insurance company/carrier? If
so, notify the Court immediately.
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Can you have any discussions before the settlement conference to make it proceed
With what value do you want to end? Why? Have you discussed this valuation with
your client? Is it significantly different from values you have placed on this case at
Is there confidential information that affects case value? Why should it not be
disclosed? How can the other side be persuaded to change values if that party
doesn’t have this information?
Where have your last discussions ended?
What happens if you don’t settle the case at the conference? What is your best
alternative to a negotiated settlement? Why?
If settlement is reached, do you want it on the record?
Have you discussed settlement formats with your client? Does the client understand
structured settlements, annuities, and Rule 68 offers to compromise?
How soon could checks/closing documents be received?
If settlement is not reached, and further discovery is needed, what is your plan for
continued settlement discussions? Do you want Court involvement in these talks?
If settlement is not reached, please be prepared to discuss settlement again at the
Final Pretrial Conference.
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