T.H. v. Martinez et al

Filing 67

ORDER by Magistrate Judge Kevin R. Sweazea. Remote Settlement Conference via Zoom set for March 25, 2025 at 09:00 AM. The Court will send out invitations for the Zoom proceedings by email to counsel of record approximately one week prior to the conference date. Consult attached order for additional instructions and related deadlines. (ldm)

N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
T.H.,
Plaintiff,
v.

No. 2:24-cv-887-MIS-KRS

MICHAEL ANDREW MARTINEZ, AND
DONA ANA COUNTY,
Defendants.
ORDER SETTING SETTLEMENT 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 March 25,
2025 at 9:00 a.m. via Zoom. The Court will send out invitations for the Zoom proceedings by email
to counsel of record approximately one week prior to the conference date.
At the settlement conference, an insured party, an uninsured corporate party, or a
governmental body 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. With the
exception of Defendant Michael Martinez, 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). Mr. Martinez’s presence
is excused upon his counsel’s request at the March 11, 2025 status conference.
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
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their own. Accordingly, as soon as possible but no later than March 14, 2025, 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.
As soon as possible after receiving Plaintiff’s letter but no later than March 19, 2025,
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(s) to opposing counsel.
If Defendants disagree with the amount of special damages Plaintiff has claimed, Defendants’
counteroffer must state the dollar amount Defendants believe 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 Defendants believe the correct amount of past medical expenses is $500,
Defendants’ letter(s) 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.
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(s) before the settlement
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conference. If settlement authority for Defendants is provided by a committee, Defendants 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.
As soon as possible after Plaintiff receives Defendants’ counteroffer, but no later than
March 21, 2025, 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, 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 Defendants have raised
affirmative defenses, Defendants’ letter(s) 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 unless authorization to disclose is obtained from the party in question. 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.
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 March 21, 2025. The
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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 side and its 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:
Plaintiff’s letter due to Defendants:

March 14, 2025

Defendants’ letter(s) due to Plaintiff:

March 19, 2025

Confidential position papers (and any audio/video recordings)
due to the Court:

March 21, 2025

Settlement Conference:

March 25, 2025 at 9:00 a.m.

SO ORDERED this 11th day of March 2025.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

See Attachment (beginning on next page)
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(SETTLEMENT CONFERENCE PREPARATION)

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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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