38 Comments - Bored Chairman - Friday, Jul 29, 16 @ 8:34 am: “WhAt we have here is a failure to communicate.” - chi - Friday, Jul 29, 16 @ 8:42 am: “Randall Schmidt, a law professor at the University of Chicago, said the general rule is settlement agreements are enforceable even if they’re not put in writing.” Well, I’m fairly certain all lawyers have their clients sign settlements for a reason, not just to bill for the extra paperwork. - Anon - Friday, Jul 29, 16 @ 8:55 am: ===I’m fairly certain all lawyers have their clients sign settlements for a reason=== Enforceable probably still means that it’s up to a judge to determine whether or not the settlement is final. The Attorney General’s office is a party to this matter and it’s probably their desire that the unsigned settlement be final. Any dispute of that would likely be decided by a judge. And at that point, unless there’s a clear letter of the law to be followed, the judge may review the plaintiffs concerns about press releases that contain personal insults, etc, and see the settlement as being negotiated in bad faith or what have you. - Cubs in '16 - Friday, Jul 29, 16 @ 8:55 am: If the plaintiffs’ attorney failed to properly advise them about the agreement procedure, could that be grounds for terminating it and starting over? - peets - Friday, Jul 29, 16 @ 9:02 am: if there was a mutual non-disparagement clause in the agreement, pretty certain Duckworth’s team violated that before anyone left the judge’s chambers. - randolph - Friday, Jul 29, 16 @ 9:04 am: if the AG office says they have a final agreement, why not release it? a lot of confusing/misinformation being reported. that would clarify at least something. - RNUG - Friday, Jul 29, 16 @ 9:11 am: A) A lot clearer / easier to decide and enforce things when they are in writing or when a court transcript exists. B) From a political perspective, it doesn’t really matter what the judge ultimately says; all that matters right now is the bad press against Duckworth. - Ron Burgundy - Friday, Jul 29, 16 @ 9:14 am: Rich is right. The judge will have to determine two things: 1. Was there a valid oral settlement agreement agreed to? If so, what were its terms? If not, off to trial; 2. If there was a valid agreement, and nondisparagement was part of it, did the Duckworth campaign comments rise to the level of blowing up the agreement? At this point the AG’s position is just that, a position. The court decides. - Last Bull Moose - Friday, Jul 29, 16 @ 9:19 am: Rich is right, this goes back to the judge. If the principals were not at the settlement meeting, did their lawyer have authorization to act in their behalf? Some of the statements indicate not. - Anon - Friday, Jul 29, 16 @ 9:27 am: === If so, what were its terms?=== One would hope that if there is something in writing to be signed that there isn’t actually any disagreement between them on the terms of the settlement and the rest may just be statements to the press differing on a technicality. - DuPage - Friday, Jul 29, 16 @ 9:30 am: I doubt they would throw $9000 away each. Unless they think they can get more to appear on campaign commercials. - pundent - Friday, Jul 29, 16 @ 9:30 am: =The judge will have to determine two things: 1. Was there a valid oral settlement agreement agreed to? If so, what were its terms?= You do realize that this “oral agreement” that you’re referring to and it’s terms were in fact arrived at in a settlement conference facilitated by the judge in question? Undoing an agreed upon settlement at this point would also mean that the attorneys representing the plaintiffs would have to agree to continue to represent them. They felt compelled enough to settle the case for a nominal amount and get their fees covered. That certainly suggests that the underlying allegations are a bit weak. If the case were to go to trial there’s a fair chance that the plaintiff’s and their attorneys make out worse. Not so sure that the lawyers are enthusiastic about that possibility. What typically happens in cases of “plaintiff’s remorse” is that the judge calls everyone back to court, reminds them of what occurred in the settlement conference and admonishes the parties as he or she see fits. I suspect that’s what will occur here. And if the judge has reason to believe that the plaintiff’s may have been influenced by Kirk’s team (if that has in fact occurred) he might not look to kindly on that either. - Illinois bob - Friday, Jul 29, 16 @ 9:32 am: I’ve looked through about a dozen stories on this, and I couldn’t find out who the “union county judge” is who oversaw the settlement meeting. Anyone know who this guy is and if he’s beholden politically to the Dem party? - Springfieldish - Friday, Jul 29, 16 @ 9:33 am: Duckworth’s current campaign is not a party to this lawsuit, so any non-disparagement clause in a settlement agreement would not be violated by statements from the campaign. The campaign has every right to comment on the publicly available information regarding the case or the settlement. And since Kirk and anyone associated with his campaign are also not parties to either the case or the settlement negotiations, any communications between the parties and anyone from Kirk’s campaign or staff is legitimately discoverable evidence regarding the question; if the parties agreed in principal to the settlement before the judge, did the plaintiffs or their attorneys have any discussions with anyone regarding their decision to accept it. Their lawyer is their agent in settlement negotiations, and if they spoke at the settlement conference at all, they spoke with apparent authority. If Kirk’s campaign interfered with the administration of a civil lawsuit, a contempt citation could be forthcoming. Kirk had gotten about as much as he can out of this issue. When you try to gild the lily, sometimes you find a wasp hiding beneath it. Meddling with a civil action for political purposes would easily overshadow the fact of the suit in the first place. - pundent - Friday, Jul 29, 16 @ 9:35 am: =did their lawyer have authorization to act in their behalf= Yes, because lawyers routinely settle cases without conferring with their clients. You do realize that there are laws and procedures that govern this right? What you’re describing would be legal malpractice. - A guy - Friday, Jul 29, 16 @ 9:40 am: ===Duckworth’s current campaign is not a party to this lawsuit, so any non-disparagement clause in a settlement agreement would not be violated by statements from the campaign.=== I’m not a lawyer, but I don’t believe this is true. If the campaign speaks for her, I suspect there is culpability there. So much of all of this could have been avoided and dispensed with. For all the help she’s received from on high, I simply can’t believe the compounding mistakes that have been made with this case. It’s confounding to me. - Louis G Atsaves - Friday, Jul 29, 16 @ 9:41 am: Only a piece of paper? Is the “settlement” $26,000 or $40,000? Matter is still on the trial docket? And just what exactly is the judge going to enforce here? And most importantly, why can’t anyone answer any of these questions? This mess is a gift to the Kirk campaign. - Ahoy! - Friday, Jul 29, 16 @ 9:43 am: Unless it is in writing, how is it final? Either way, the case will extend on until much closer to the election if not afterwards. - Ron Burgundy - Friday, Jul 29, 16 @ 9:49 am: –You do realize that this “oral agreement” that you’re referring to and it’s terms were in fact arrived at in a settlement conference facilitated by the judge in question?– Of course I realize that. Thus the judge should know very well what terms were agreed to and what was not. – Duckworth’s current campaign is not a party to this lawsuit, so any non-disparagement clause in a settlement agreement would not be violated by statements from the campaign – I tend to agree with a guy. Ms. Duckworth is a party. Her campaign is acting and speaking on her behalf. If they are not, whose behalf are they speaking on? She has the power to control what is said by the campaign. - Anon - Friday, Jul 29, 16 @ 9:49 am: ===That certainly suggests that the underlying allegations are a bit weak. If the case were to go to trial there’s a fair chance that the plaintiff’s and their attorneys make out worse.=== I don’t really think its appropriate to claim that allegations covered in a settlement are weak, especially since there’s two parties in the settlement and clearly the Attorney General’s Office feels the allegations are strong enough to merit a settlement. ===Duckworth’s current campaign is not a party to this lawsuit, so any non-disparagement clause in a settlement agreement would not be violated by statements from the campaign.=== LOL — you could make that argument, but I don’t think it holds a whole lot of water. ===Kirk had gotten about as much as he can out of this issue. === He’s got at least one more story confirming that the settlement does in fact stand, and potentially several other stories if the judge has to have a conference before making the determination or it winds up not being decided until the day of the scheduled trial. ===Meddling with a civil action for political purposes=== Sounds like you’re making an accusation without evidence. - Thoughts Matter - Friday, Jul 29, 16 @ 9:52 am: I haven’t been following the facts of this case- but seriously pulling a settlement because some campaign person called the lawsuit frivolous? So what? Campaign staff say all sorts of things, no need to get upset over it. Frankly, pulling the settlement makes me roll my eyes. No. I’m not a Duckworth supporter. I’m undecided. - atsuishin - Friday, Jul 29, 16 @ 10:02 am: ===For all the help she’s received from on high, I simply can’t believe the compounding mistakes that have been made with this case. It’s confounding to me.=== She’s incompetent. utterly incompetent. expect this level of incompetence from her senate office. If I didn’t want a republican senate I would vote against her. - Anonymous - Friday, Jul 29, 16 @ 10:07 am: Anon - “Attorney General’s Office feels the allegations are strong enough to merit a settlement.” Wrong The settlement would have been much higher if the AG felt there was any strength to the claims. At this lower amount, the state is saving money by settling now instead of continuing to waste time and resources defending it. - Gooner - Friday, Jul 29, 16 @ 10:11 am: Ahoy and others, As I detailed yesterday, settlements agreed to in court before a judge can be enforced even without a signed settlement agreement. The remedy is for the party to bring a Motion to Enforce Settlement. If the parties agreed in court, the judge will enforce it. You can’t change your mind after leaving court. - pundent - Friday, Jul 29, 16 @ 10:12 am: Anon - Whether Kirk’s office meddled with the civil action is still a matter of debate. But as Rich noted yesterday, they did acknowledge speaking with the whistleblowers after the case was settled. No idea what those discussions consisted of but the judge may not look to kindly on that aspect either. If the plaintiff’s are claiming that resolution of this case was exploited for political purposes talking to Kirk’s people might not exactly help their argument. - Ron Burgundy - Friday, Jul 29, 16 @ 10:17 am: – I haven’t been following the facts of this case- but seriously pulling a settlement because some campaign person called the lawsuit frivolous? So what? Campaign staff say all sorts of things, no need to get upset over it. – The key here is the word “frivolous.” It’s kind of a magic bad word that has particular meaning in the legal system. Courts have rules against filing “frivolous” lawsuits, and lawyers and parties can be sanctioned or disciplined for filing suits without merit. This suit was never judged to be frivolous by the judge and to my knowledge the AG never filed a motion to have it thrown out on that basis. So calling it frivolous as a term of art is factually incorrect. That’s why that word may matter. - Ron Burgundy - Friday, Jul 29, 16 @ 10:26 am: Adding to my prior comment, at a firm I used to be with filing a motion for sanctions and/or a motion to dismiss a case as frivolous was considered such a serious matter that the firm’s internal general counsel had to approve it first. - Springfieldish - Friday, Jul 29, 16 @ 10:31 am: Whether Kirk’s office meddled in the settlement agreement is not an accusation, but a question and, if the issue becomes whether the plaintiff’s attorneys settled the case without the actual authority from the plaintiff, then the plaintiff’s attorneys will need to protect themselves against a malpractice action and you can bet that they’ll be willing to offer any evidence that exists of backdoor conversations between Kirk people and the plaintiffs. And it would not violate attorney client privilege because they need only disclose the fact of a contact, not what was said, Actually, the argument that Duckworth’s campaign spokesman called the suit frivolous was no violation of a nondisparagement agreement, presumes that such a thing exists in the first place, and I doubt it. Retaliatory discharge cases in the private sector might have them, but I’d bet a dollar the AG’s office would fight it because it is generally unenforcable. Would it be violated if someone that worked in the plaintiffs’ office said they were golddiggers? Would it be violated if someone connected to the Governor’s office said that the AG’s office settled the case solely to prevent Duckworth from testifying? Such agreements are always construed as provided the most limited scope possible. A campaign spokesperson, and a campaign nearly ten years after the fact would not be within a reasonable scope. And remember, the plaintiffs said they believed they had the right to accept or decline the settlement even after their attorneys agreed to it in front of the judge, not that the campaign’s statement violated a term of the agreement. - Anonymous - Friday, Jul 29, 16 @ 10:34 am: Attorneys use the term frivolous in court filings all the time. It doesn’t mean they are going to seek sanctions. - Responsa - Friday, Jul 29, 16 @ 10:34 am: == Is the “settlement” $26,000 or $40,000?== Yes this seems to be the critical and all-important question, doesn’t it?. ==The attorney general’s office reached out to me after I posted that initial settlement story to tell me that the settlement involved more than just attorney fees and costs. But, as I recall, it was late in the day and I was swamped with something or another and didn’t get around to posting it. My bad.== This quote was an update to Rich’s initial post yesterday. I think many of us who read it probably took it to mean that the $40,000 figure was closer than the $26,000 figure since the AG’s office “reached out” in an apparent attempt to correct the record about what all components the settlement contained. - Rich Miller - Friday, Jul 29, 16 @ 10:36 am: ===I think many of us who read it probably took it to mean that the $40,000 figure was closer than the $26,000 figure=== You read something I never wrote. - Gooner - Friday, Jul 29, 16 @ 11:41 am: Anon 10:34, I’m with Ron Burgundy on that one. I never use the word “frivolous” unless I follow up with a motion for sanctions. While my firm does not go as far as Ron’s, we do take it very seriously. I’ve been doing this for nearly 25 years. About a year ago, I received the first significant sanctions award. To get it, I made a few points. Initially, the plaintiff’s case had utterly no merit. It was completely baseless. It showed a complete lack of legal research by plaintiff’s counsel. As importantly though, it was a case I took for a relative. The judge understood that if my client was not lucky enough to be related to a lawyer, she would have had a tough and very expensive time getting out of the case. The judge was completely outraged and awarded sanctions. I received less than I might have billed on the case, but the award was significant. Sanctions for frivolous pleadings are not something that is taken lightly by either counsel or judges. People in the media throw that term around. Also, politicians (candidates and electeds) like to talk about “frivolous lawsuits.” In reality, we rarely see them because they tend to be dismissed out immediately. So now, we don’t toss that term around. Finally, following up on Prudent’s comments — whether plaintiffs were in court will be a factor. If they were, it is over. At times though, I have had parties raise the defense that counsel was not authorized to enter into the settlement. It happens. - Anonymous - Friday, Jul 29, 16 @ 12:01 pm: Parties are bound by what counsel does. Otherwise the system wouldn’t work, everything would be open to revision or withdrawal. If plaintiffs’ attorneys settled without their permission, there are other options such as legal malpractice claims and ARDC complaints. But it sounds like plaintiffs agreed and are petulant about perceived insults in the press. - Thoughts Matter - Friday, Jul 29, 16 @ 12:05 pm: I understand others points about the lawyers in the case not using the word frivolous- but this wasn’t the lawyer, this was a campaign staffer. To me, the statement is as meaningless as if I were the one that says it. Also, unless the settlement said Tammy had to admit they their claims were true, then she could still dispute the merits - correct? - Anonymous - Friday, Jul 29, 16 @ 12:10 pm: Whatever the final outcome is, Duckworth’s staff bungled badly by shooting their mouths off and slamming the plaintiffs. In all likelihood, the settlement would have contained terms as to not disclosing details of the agreement and not disparaging the opposing party. Duckworth’s campaign looks stupid for mishandling this and adding to fuel to flame a controversy that was about to go out. - Ron Burgundy - Friday, Jul 29, 16 @ 12:12 pm: –Also, unless the settlement said Tammy had to admit they their claims were true, then she could still dispute the merits - correct? – I’m sure the settlement contemplated no admissions of any kind. We’ll have to wait and see what if anything the judge does with the “frivolous” comment, but the far better practice would have been to withhold comment until the case was officially dismissed and off the court’s docket. - Anonymous - Friday, Jul 29, 16 @ 12:48 pm: Again, cannot have confidentiality provisions because of FOIA. She was sued in her official capacity as a state official. - walker - Friday, Jul 29, 16 @ 1:43 pm: “”"We’ll have to wait and see.”"” Best comment on the legalities. On the politics, every public mention hurts until they finally cease. Sorry, comments for this post are now closed.