Hernandez v. Allstate Insurance Company

Filing 19

ORDER SETTING SETTLEMENT CONFERENCE by Magistrate Judge Lourdes A. Martinez. Settlement Conference set for 9/7/2017 at 09:00 AM in Albuquerque, New Mexico (courtroom to be determined at a later date). (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DONNY HERNANDEZ,
Plaintiff,

v.

No. CIV-17-0127 SMV/LAM

ALLSTATE INSURANCE COMPANY,
Defendant.

ORDER SETTING SETTLEMENT CONFERENCE
This case has been referred to me for a settlement conference.

See D.N.M.

LR-Civ. 16.2(a). Having conferred with counsel about a mutually-convenient date, time, and
location,
IT IS HEREBY ORDERED that all parties and their lead counsel shall appear at
the United States Courthouse in Albuquerque, New Mexico (courtroom to be determined),
on September 7, 2017 at 9:00 a.m. An insured party or an uninsured corporate party shall also
have at the settlement conference a representative with full authority to discuss and enter into a
binding settlement. Please note that Judge Martinez’ definition of “a representative with full
authority” is the person who can authorize payment of Plaintiff’s last demand prior to the
settlement conference. This does NOT mean that this person will be willing to pay it; it just
means that this person has the “authority” to pay it.
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, by August 17, 2017, Plaintiff’s counsel shall serve on
defense counsel a letter, with a copy to the Court by e-mail to the proposed text e-mail of the
Magistrate Judge who is assigned to this case at that time,1 or by mail as long as the letter arrives
by the deadline, that sets forth at least the following information: (a) a brief summary of the
evidence and legal principles that Plaintiff asserts will allow it to establish liability; (b) a brief
explanation of why damages or other relief would appropriately be granted at trial; (c) an
itemization of the principles supporting those damages; and (d) a settlement demand. By
August 24, 2017, defense counsel shall serve on Plaintiff’s counsel a letter, with a copy to the
Court by e-mail to the proposed text e-mail of the Magistrate Judge who is assigned to this case
at that time, or by mail as long as the letter arrives by the deadline, 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.
At least 7 calendar days before the conference (by August 31, 2017), each party must
provide the Court, in confidence, a concise letter of the case (typically no more than 4 pages),
containing an analysis of the strengths and weaknesses of that party’s case. As should be
apparent, this confidential letter must not be a mere restatement of the letter served on opposing
counsel. All matters communicated in the confidential letter will be kept confidential, and will
not be disclosed to any other party, or to the trial judge. The parties are to submit the statements

1

Once the parties are notified that this case has been reassigned to the Magistrate Judge who will succeed
Judge Martínez, the parties are responsible for determining the proposed text e-mail address for that Magistrate
Judge.

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by e-mail to the proposed text e-mail of the Magistrate Judge who is assigned to this case at that
time, or by mail as long as the letter arrives by the deadline.
Furthermore, if any party has in its possession any video or audio recordings of the
incident upon which this action is based, that party must send the Court a copy of the recording
at least 10 calendar days before the settlement conference.
The purpose of the settlement conference is to facilitate settlement of this case, if that is
appropriate. It will be conducted in such a manner as not to prejudice any party in the event
settlement is not reached. To that end, all matters communicated to the Court in confidence will
be kept confidential, and will not be disclosed to any other party, or to the trial judge. The
Magistrate Judge conducting the settlement conference, of course, will not serve as the trial
judge in this case. See D.N.M. LR-Civ. 16.2 (e).
At the settlement conference, the parties, through counsel, may give a brief (five minute)
presentation outlining the factual and legal highlights of their case.

Then separate and

confidential caucuses will be held with each party and the party’s representative(s). Attached is
a Settlement Conference Preparation outline for counsel to review with the parties prior to the
settlement conference to help in preparing for the conference and to make the best use of the
time allotted.
The request for parties’ personal appearance is intended to increase the efficiency
and effectiveness of the settlement conference, by reducing the time for communication of
offers and expanding the ability to explore options for settlement. A request to be excused must
be made in writing five calendar days before the conference. See D.N.M.LR-Civ. 16.2 (d).

3

Vacating and re-setting of settlement conferences can disrupt the case management
schedule and inconvenience the parties, counsel, third parties, and the Court. A request to vacate
a settlement conference should be made AS SOON AS counsel or the parties become aware of
the circumstances giving rise to the request. Requests to vacate settlement conferences must be
made by written motion, and their approval by the court will require a showing of good cause.
IT IS THEREFORE ORDERED as follows:
Plaintiff’s letter and settlement demand
due to Defendant:

August 17, 2017

Defendants’ letter and counteroffer
due to Plaintiff:

August 24, 2017

Parties’ confidential positions statements
due to the Court:

August 31, 2017

Settlement Conference:

September 7, 2017 at 9:00 a.m.

IT IS SO ORDERED.

___________________________________
LOURDES A. MARTÍNEZ
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 held more efficiently if all parties and counsel are
prepared. The following are some areas to consider in order to aid in the effectiveness of this
settlement conference.
A.

FORMAT
1.
2.

The Court will use a mediation format, and private caucusing with each
side; the judge may address your client directly.

3.

B.

Parties with ultimate settlement authority must be personally present.

Do you want a summary jury trial, arbitration, mini-trial or other
procedure instead of/after this conference? If so, or if you want to know
more about these processes, please contact the Court so a conference call
to discuss options can be arranged. Have you discussed these options with
your client?

ISSUES
1.

2.

What remedies are available resulting from this litigation or otherwise?

3.

Is there any ancillary litigation pending/planned which affects case value?

4.

Do you have enough information to value the case? If not, how are you
going to get more information before the conference?

5.

C.

What issues (in and outside of this lawsuit) need to be resolved? What are
the strengths and weaknesses of each issue. What is your most persuasive
argument?

Do attorneys’ fees or other expenses affect settlement?
communicated this to the other side?

Have you

AUTHORITY
1.

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.

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2.

D.

Is there valid insurance coverage? In what amount? If coverage is at
issue, or the amount/type affects settlement value, have you notified the
other side? Do you need to include the representative from more than one
company/carrier? If so, notify the Court immediately.

NEGOTIATIONS
1.
2.

Can you have any discussions before the settlement conference to make it
proceed more efficiently?

3.

What value do you want to start with? Why? Have you discussed this
with your client?

4.

What value do you want to end with? Why? Have you discussed this
with your client? Is it significantly different from values you have placed
on this case at other times?

5.

Is there confidential information which affects case value? Why
can’t/won’t/shouldn’t it be disclosed? How can the other side be
persuaded to change value if it doesn't have this information?

6.

E.

Where have your last discussions ended? Are you sure?

What happens if you don’t settle the case at the conference? What is your
best alternative to a negotiated settlement? Why?

CLOSING
1.

If settlement is reached, do you want it on the record?

2.

Have you discussed settlement formats with your client? Does the client
understand structured settlements, annuities, Rule 68 offers to
compromise?

3.

How soon could checks/closing documents be received?

4.

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?

5.

If settlement is not reached, be prepared to discuss it again at the Final
Pretrial Conference.

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