| Chapter
9
Covering
Civil Courts
By Maurice
Possley
Settlements
Civil cases may be settled by agreement of both parties at any stage of the
case. This may happen before trial, during trial or during jury deliberations
or after the jury has rendered a verdict and judgment.
In some cases, a settlement is reached after a large verdict for
the plaintiff. Rather than wait for the conclusion of a lengthy
appeals process, a plaintiff may accept a lesser amount in settlement.
Settlements—because they are reached out of court between
the parties—are not always made public and there usually
is no requirement that either party disclose the amount, unless
one party is a public body and is paying the settlement with taxpayer
funds. The practice has come under serious criticism, particularly
in Boston, where the Roman Catholic archdiocese settled numerous
cases of priests accused of child molestation and judges sealed
many of the files, allowing some priests to move elsewhere and
molest again. When the Ford/Firestone tire scandal erupted in the
summer of 2000, most Americans had never heard about certain tires'
potentially lethal problems with tread separation, primarily because
the company had settled most claims with key documents being sealed.
Some 271 deaths and more than 800 accidents were linked to the
SUV and its tires, federal authorities said. A 2005 federal indictment
against W.R. Grace & Co. alleged the company hid from workers
the dangers of mining vermiculite laden with asbestos dust. More
than 200 people have died in Libby, MT., where the ore was mined
and hundreds are sick and for years the dangers didn’t become
public because the few workers who did sue agreed to settlements
that were sealed.
It can be difficult obtaining settlement information when neither
party is a public entity. If one of the settling parties is a government
agency, the settlement, particularly if it involves payment of
public funds, frequently must be approved in a public forum. Typically,
a case is dismissed “with prejudice” when it is settled,
meaning that it cannot be revived by either party—unless
the settlement agreement is violated. Reporters should question
the parties involved, their lawyers, and the judge in an attempt
to find out settlement information. (Faced with uncooperative sources
in the 2005 settlement of a lawsuit brought against Kobe Bryant
by the woman who accused him of raping her, the Denver Post quoted
lawsuits “familiar with settlements” to come up with
a range of $300,000 to as much as $4 million.)
Public or Secret?
Unfortunately, the decision about whether the terms of a settlement of a civil
lawsuit is open or secret is up to the judge in the case. There are very
few laws requiring courts to make settlements public. However, there is case
law that strongly encourages judges to make settlements part of the public
record if the judge is convinced that it is in the public interest. In 2005
in Arlington Heights, Illinois, a special needs institution reached an out
of court settlement with the family of a student who committed suicide at
one of its facilities. The parties originally convinced the judge in the
case to have the terms of the settlement agreement sealed. However, lawyers
representing the Daily Herald filed motions seeking to have the
details made public, arguing that because the institution does business with
the Illinois child welfare system, the public has a direct interest in the
terms. The judge agreed and made the $600,000 figure public. Journalists
may also be able to obtain the terms of civil court settlements involving
public or governmental agencies by filing public records requests directly
with those agencies.
The Appeal
After a verdict, there may be various post-trial motions filed. These can include
a motion for a new trial, motion for judgment notwithstanding the verdict,
motion for reconsideration and motions to increase or decrease the amount
of the verdict.
Once a losing side has filed a notice of appeal—a motion
filed with the appellate court saying that an appeal will be filed—very
little happens in the case that is newsworthy for some time. There
will be a passage of time while the record—the transcripts
of the pre-trial hearings and trial testimony as well as the documents
and exhibits and motions and memoranda of law—are prepared
and forwarded to the appellate court.
The record, particularly the transcripts, which will include all
discussions in chambers and outside the hearing of the jurors during
trial—called sidebars because they are usually held at the
side of the judge’s bench—can be particularly a particularly
good source of information for anyone wishing to reconstruct a
case or look for hidden nuances that may explain why a particular
verdict was reached. Reporters seeking information such as names
of jurors can usually find this information in the record because
a transcript of jury selection will be included.
Examining these materials may provide grist for a story or a terrific
jumping off point to contact jurors, the parties in the case or
the lawyers for stories that explain the significance of a particular
case beyond the mere rendering of a verdict.
While court hearings and trials are, by law, completely open to
the public, access to court transcripts is a more difficult matter.
Very few courts have policies or guidelines regarding who owns
the court reporter's notes or how much it can cost to have court
transcripts prepared. As a result, it can cost hundreds or thousands
of dollars to have court proceedings transcribed. In high-profile
matters, lawyers in the case frequently have daily transcripts
prepared. In death penalty cases, the lawyers handling the appeal
are, by law, provided a transcript of the case's pretrial hearings
and trial.
Ultimately the losing side at the trial court level—known
as the appellant—will file a legal brief outlining arguments
for why the verdict was wrong and the law supporting that position.
The winning side at the trial court level—the appellee—then
is allowed time to file a responding brief. The appellant is allowed
to file a response. Any or all of these filings may produce news
depending on the nature of the case and how much coverage the underlying
case generated at trial.
The appellate process, where the burden shifts to the losing party,
can take years to play out. In 1989, the Exxon Valdez ran aground
and spilled millions of gallons of oil. In 1994, a federal jury
awarded fishermen and Alaska natives $5.3 billion. Exxon, arguing
that the verdict was erroneous, still is appealing. Dozens of the
fishermen are now dead or in bankruptcy. Many legal experts say
that appeals can be just as frivolous and abused as lawsuits. Unlike
criminal cases where the 6th Amendment double jeopardy clause prohibits
prosecutors from appealing not guilty verdicts, plaintiffs can
appeal if they believe they did not receive a fair trial.
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