Herrera v. City of Jal Police Department et al

Filing 31

ORDER by Magistrate Judge Kevin R. Sweazea RESETTING Settlement Conference to October 8, 2024 at 09:00 AM via Zoom. Telephonic Status Conference set for August 28, 2024 at 09:00 AM. Consult Order for associated deadlines. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESUS P. HERRERA,
Plaintiff,
v.

No. 2:23-cv-1101 JHR/KRS

CITY OF JAL POLICE DEPARTMENT,
ROBERT EMBLEY and JOSE SIERRA,
Defendants.

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 ORDERED that:
All parties and their lead trial counsel shall appear for a settlement conference on
October 8, 2024 at 9:00 a.m. via Zoom. 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 August 28, 2024 at 9:00 a.m. to confirm their
readiness to participate in the settlement conference. The parties shall dial [phone] 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 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).

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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 September 17, 2024, 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 September 24, 2024, 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. 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 conference.
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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 October 1, 2024, each party must provide the Court a concise,
confidential letter, and Plaintiff’s counsel shall provide the Court copies of the letters
exchanged between the parties. The parties’ confidential letters to the Court shall typically be no
more than seven (7) pages unless and shall contain 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. Plaintiff’s letter must include a discussion of the
evidence supporting each of Plaintiff’s causes of action, applied to the elements of each cause
of action which Plaintiff is asserting. If Defendant has raised affirmative defenses,
Defendant’s letter must include the elements of those defenses and a discussion of the evidence
supporting each affirmative defense. These confidential letters 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 October 1, 2024.
The parties shall submit their letters and other materials to the Court, preferably by e-mail,
([e-mail]), or, alternatively, by facsimile [phone], 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.
IN SUMMARY:
Telephonic status conference:

August 28, 2024 at 9:00 a.m.

Plaintiff’s letter due to Defendant:

September 17, 2024

Defendants’ letter due to Plaintiff:

September 24, 2024

Confidential position papers (and any audio/video recordings)
due to the Court:
October 1, 2024
Settlement Conference:

October 8, 2024

___________________________________
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.
A.

B.

C.

FORMAT
1.

Parties with ultimate settlement authority must be personally present.

2.

The Court will privately caucus with each side in a typical mediation format. The
judge may address your client directly.

3.

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.

ISSUES
1.

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?

2.

What remedies are available resulting from this litigation or otherwise?

3.

Is there any ancillary litigation pending/planned that affects the value of the case?

4.

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

5.

Do attorney’s fees or other expenses affect settlement? Have you communicated any
lack of information to the opposing side?

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.

2.

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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D.

E.

NEGOTIATIONS
1.

Where have your last discussions ended?

2.

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

3.

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
other times?

4.

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?

5.

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, and 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, please be prepared to discuss settlement again at the Final
Pretrial Conference.

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