The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

Pretrial Settlement Conferences: A Roundtable Discussion With Judges Patrick J. Leston, Hollis L. Webster and Bonnie M. Wheaton
(Conducted at a joint meeting of the Labor & Employment Law Committee and the Local Government Committee in 20031 )
 By Steven M. Ruffalo

MR. RUFFALO: Okay. Can I have everyone’s attention. We are honored today to have Judges Pat Leston, Hollis Webster and Bonnie Wheaton here to talk about pretrial settlement conferences. This is the last meeting of the year for the Local Government Committee and acting jointly with the Labor and Employment Law Committee. Ken {Flore} is the chair of Local Government and I, Steve Ruffalo, am the chair of the Labor and Employment Law Committee.

In terms of having pretrial settlement conferences for purposes of reaching a settlement, do you have any opinions on what is the best time for a settlement conference to occur? Do you consider it to be more effective after discovery, after a trial’s been set, or on the eve of trial for instance?

JUDGE LESTON: I’ll start off. Some of it depends on the nature of the case. Oftentimes after non-medical fact discovery has been completed is a good time for pretrials because the parties are going to have to spend a substantial amount of money bringing in the doctors and deposing the doctors. That is the first time in my practice that I would look towards setting a pretrial. And you’re pretty well done with that in six months or a year. You’re done with fact discovery. That only works if there’s no dispute as to the medical problems.

If, in fact, you suggest a pretrial before the doctor’s depositions, and the defense attorney says: "Well, we believe there’s a history. We believe there’s no causal connection" then there’s really no choice but to complete the medical depositions. And you’re really just wasting your time unless the plaintiff is willing to concede some errors. So that would be the second time that you want to schedule or talk about scheduling the pretrial. That is, after the medical testimony has been secured but before the parties have hired the experts.

Now, in theory I think we’re only supposed to have one or two pretrials, but it almost always breaks down to three pretrials. Now you’ve had your medical testimony completed and everybody has looked at the records, and you may have avoided pretrial there. It then becomes a battle of what the experts say.

Defense says "we’re going to send it out and get our own opinion and get the independent medical examination". At that point, you’re going to have to wait for the 213s to discuss any money. So there are kind of three spots in the litigation at which you want to discuss settlement in personal injury cases.

And in business cases, I would have a pretrial just as early as possible to see what the real dispute is and then suggest many of those cases be moved to a mediation system rather than the law division. That’s been my practice.

MR. RUFFALO: Do you find the lawyers that are before you are willing to take that recommendation and take their matters to mediation more often than not?

JUDGE LESTON: I’m going to let Hollis direct that.

JUDGE WEBSTER: Not as often as I would hope.

And I guess just to respond to the first question, in my opinion the best time to settle a case is before it’s filed. I really think it’s better for the litigants, especially in business cases, because of the cost.

Mediation honestly has been a bit of a disappointment in terms of the number of cases coming into mediation, but it’s been a huge success for those cases in the system. And so I would trumpet our mediation system here and our court-annexed mediation or private mediation and also tell you that in the law division that we have just started publicizing the fact that the law division judges are willing to act as mediators in cases that they are not handling themselves as long as the handling judge agrees, which has — I’ve never had a situation where the handling judge doesn’t agree to send the case down the hall for a mediation.

Just to add to what Pat said, I think in cases where there is no insurance involved — regardless of whether it’s a personal injury case or a defamation case — that the earlier the better. And the earlier the better with the litigants present in court and with a time allotment that the judge can spend some time with the litigants so they can tell their story, they can explain what the injury was and what they’re looking for.

In many cases, and I know Bonnie will speak to the chancery cases, but in many cases I find, especially in defamation, battery coming out of a criminal case, intentional infliction of emotional distress, the parties are looking for something different than money, and they can’t get something different than money in a trial on our side of the hallway. And so if they come in at an early settlement — I just had a case where the settlement was — it was a neighborhood dispute. Well, the defendant agreed to put his house up for sale and be out by X date.

JUDGE WHEATON: And I have the companion case for that. I’m very happy with that result.

JUDGE WEBSTER: But I just think so many more things can be achieved by way of settlement than can through trial. And once the case is fully worked up, which happens unfortunately in a complicated

medical malpractice case where the insurance company needs to get the deposition of the plaintiff’s expert, which I find is probably the only time to settle a contested med mal case unless it’s just admitted negligence and there’s no question about the injury, but the earlier the better.

In the first status in an auto case I invite the parties to come in. I mean, it just seems silly to me to be spending the money to depose these doctors when the case maybe was 100, $200 off before it was filed even. So the earlier the better.

And in contract cases, the golden opportunity is after the written discovery. Once you’ve got the contracts, once you’ve got the damages, come in and at least begin the discussion.

And I find if the two principals are present and I’m talking to the lawyers, more often than not the principals are out in the courtroom settling their case. So that’s an effective tool as well.

JUDGE WHEATON: In the chancery division of course we hear cases that are different from med mal or auto cases. I found that there are two times when pretrials are most effective. The first is right after the case is filed. This comes up a lot because we have a lot of emergency motions for a temporary restraining order, preliminary injunction.

The second time that is the most ripe for settlement is after all the discovery has been completed but before you have a trial date set.

In my experience chancery cases involve people who generally had some sort of a prior relationship, employee, employer, two neighbors, partners splitting up a business. So you’ve got a lot of personality issues. I’ve got — I don’t know how many cases I’ve had where there are siblings who are fighting over who is going to take care of Mom or Dad, and it’s like a divorce case only worse.

Even in business cases there are a lot of family businesses that tend to implode. Those cases I try to get in just as early as possible, before all of the personality issues that may have gone on for decades before have really come to the surface, and people get so entrenched in their positions that it’s almost impossible to settle.

The second time, of course, is after you’ve completed your discovery and you know the strengths and weaknesses of your own case, you also know the strengths and weaknesses of the opponents’ case, and people have a much more realistic idea of what a best-case scenario would be and what a worst-case scenario would be.

I look at settlements from a judge’s point of view as an investment of time. If it takes me two, three, fours hours to try to settle a case, that could save me two week’s worth of trial. So I’m more than willing to sit down with the parties.

And just this morning I had two cases come in and they said, "Judge, if we could just have a little bit of your time." Well, we ended up, I hope, settling one and definitely settling the other. But that’s two cases that I don’t have to try, and I’m very happy with that.

I used to be a social worker in my life before the law, and I find that that training helps me an awful lot. I don’t deal with professional people like claims adjustors who probably have a much better idea of what a case is worth than I do. I can help people deal with sort of the emotions of it.

One of the women this morning said, "Oh, Judge, I wouldn’t want your job. This must be like dealing with children."

I said, "No, it’s much better than dealing with my children because they never listened to me, but litigants do."

MR. RUFFALO: You have all had a lot of pretrial conferences, and in the course of doing them as you sit here have you come to know any tactics or strategies that you identify that are just completely unsuccessful and when you see them you kind of cringe?

JUDGE WEBSTER: Unsuccessful.

MR. RUFFALO: Unnecessary.

JUDGE WHEATON: On the part of the lawyers?

MR. RUFFALO: Or the litigants. I mean —

JUDGE WEBSTER: How about the judge?

MR. RUFFALO: We would accept that as well.

JUDGE LESTON: Well, overstating your case doesn’t advance it much. And it causes almost a little bit of frustration. You look at the case and maybe the case is worth 50 or 60, and if you’re going to come in at 250, I just kind of sigh and say: Where are we going to go with this? We’re not going to settle the case. At that point we have to decide is this a real number. Do you want me to just set it for trial? Or do you have any interest in settling the case?

And I guess that frustrates me a little bit. When we get just out of the ballpark demands because defense will not respond. Then you’ll get a nuisance value offer. And we’re really not going anywhere.

On the business disputes, those cases they’re the same — people take aggressive positions. But eventually, after their clients have paid their respective attorneys on an hourly basis and they realize they’ve bled enough money, those cases settle or become ripe for mediation. And you’ve been in a couple of these cases yourself, if I remember correctly.


JUDGE LESTON: But we don’t try many. I think I’ve only tried one business suit in the law division since I’ve been there. Most trials are personal injury actions.

I guess realistic demands would be the one thing I suggest. Everybody values their case differently, I guess, so it’s hard to stand in the other guy’s shoes. But, if I audibly sigh, that means I don’t think we’re going anywhere.

JUDGE WHEATON: I agree with that. I think the unrealistic demands are the least successful from my perspective when you get somebody that says: Well, my client wants $35,000 for what they’ve been through and pay his attorney’s fees for 50,000.

And the other side is saying: Well, this case is not worth that — we’ll agree not to do what wrong thing we’ve done before and pay you $5,000.

That just creates such a gulf that, you know, you want to say, you know, you’re wasting my time. Just go out and get a trial date.

And then I unleash my last best effort and I say I can’t make your client be reasonable, but he may later wish he had been.

JUDGE WEBSTER: The flip of that is the defense attorney that comes in and says on the third pretrial: "Oh, well, my carrier just really hasn’t evaluated this and, Judge, I’ve got $5,000 and the demand is $250,000." And I have to say in my experience lately that happens more than the unrealistic demand. And I think it’s more efficient if the court order says pretrial set for Friday at 10:00, "all parties must be present." There you have a plaintiff who’s taken a day off of work, you’ve got the plaintiff’s attorney and defense counsel comes in, who is not handling the case, who says, well, the carrier just hasn’t evaluated it. All you have do is motion it up a few days before and say let’s move the pretrial because then what you have done as a defense attorney is anger the plaintiff, who was coming in ready to settle his or her case on that Friday morning at 10:00, looking at spending $5,000 to get Dr. Walsh to sit for his discovery deposition and say, no, I want $300,000 more. So I really think that taking an adversary stance at the pretrial brings the parties farther apart.

I just wanted to add a few statistics. The National Center for State Courts has done a study on pre-trials, and they found that 55 percent of all cases that go to a pretrial of any kind, civil cases, settle on the day of the pretrial. Another 15 percent of those cases that go to any type of pretrial in a state court, civil cases, resolve within two weeks, within 14 days, after the conference.

Compare that with — the study they have done shows that — 90 percent of cases that go into mediation, either court-annexed mediation or private mediation, resolve without trial. Both are fairly effective means to resolve your case. Mediation you have a little more control. You can do that right from the get-go. But I do think that pretrials are very effective as well.

It always seems a shame to me that so many of our cases settle on the day of trial. I think almost every judge will do a pretrial on the day the case is set for trial, and I never can understand why that is the day – you know, psychologically I can understand. But when I consider the costs that each side has been through, not only the litigants but the wastes of your weekend before trial and then it settles, maybe that’s the psychological do or die courthouse steps, you know, we’re going to – bird in the hand.

If it could only happen like a month sooner, it seems to me that we as judges would be doing a better service to the litigants to be a bit more pushy in making the litigants actually come to court and making them understand the cost of actually going through with the whole show, making them understand that it won’t make them as happy as they think it will to sit and cross-examine that defendant that you believe has defamed you. I mean, it will go both ways, and it will be an uncertain result.

But I do think pretrials are very successful, and as attorneys I think you should force us to set them. You should come in and say, "we want to motion this up for a pretrial. We know we’ve had two. We want another one. Judge, can you give us two hours?"

You’ve got to give us notice so we can schedule it, but I think the attorneys can really use the judges as mediators. Because I do think the time is available to do it.

JUDGE LESTON: One of the things that is not helpful I think is for you to follow the actual preprinted form of the pretrial memo, that little one-page thing. That’s absolutely worthless. Use that format in the sense of titles, attorneys, incident, issues, but then just go off on your own. Don’t cram your medical bills into two lines. Make a decent presentation. Remember you’re pitching. You’re selling a case. It’s like an advertisement. So list your medical bills.

I like to see the medical bills listed out and not a lump sum of $15,000. I would like to see who was the neurologist, who was the orthopedic physician. How much of this is chiropractor. It helps you value the case a little bit. It helps us all value the case. And it helps us discuss realistically what is going to go before the jury and what the jury is going to consider. It helps us realistically give you an idea, or give your client an idea, of how these cases come out with evidence of this nature.

So I would say go ahead and give a realistic pretrial memorandum. And if it takes two-and-a-half pages, it takes two-and-a-half pages. Don’t summarize every deposition of every witness. We don’t need that information. But you’ve got to paint the picture, to use the old litigator’s phrase. And you might as well paint it for the judge in a similar fashion as you intend to do for the jury.

MR. RUFFALO: I would imagine it’s not very often that any of you have pretrials without requiring the parties being present?

JUDGE WEBSTER: All the time we have the parties not present.

MR. RUFFALO: Really?

JUDGE WEBSTER: All the time.

MR. RUFFALO: And how does that work it terms of success ratio? Does that result in settlement more often?

JUDGE WHEATON: It depends on the type of case. If you’ve got something where, as I said before, the parties are heavily invested in it, sometimes it’s really helpful to have one side sitting on one side of the courtroom and the other on the other side while the attorneys are back in chambers, and it gives them a feeling of what the stress level is going to be.

One thing that I like to do is talk to the parties individually with one attorney, and that’s — of course you can only do that if the attorneys agree to it. But I found that a lot of times with nonprofessionals, excluding insurance adjustors, people just want to have somebody in a position of authority listen to them. They don’t really care what the result is, they just want somebody to say, "yeah, I can see your point, but did you ever consider this?"

I think that’s the best thing that a judge can do is just listen to them and take the time and say I understand but I have to make my decision on what the evidence is and the testimony is going to be, and the other attorney is going to raise these issues. And a lot of times if they get a sympathetic ear from the judge, they’re much more willing to accept a settlement that is way lower than they think they’re entitled to.

And I’ve got my own little speech that I’ve developed over the past 15 years that I just — it works every time. It’s wonderful. I talk about the stress level and how stressful it is just being here for the pretrial. You can imagine how much more stressful it’s going to be when you get 12 people in the box or when you know that this is for real. The ambulance drives up twice a week to take away people who have chest pains. You know, for a middle-aged man, that’s very effective.

JUDGE WEBSTER: On that issue of having parties present, one thing I think that attorneys sometimes don’t take advantage of is having all interested parties present because sometimes it’s not just the parties that have a say in settlement. In the battery cases it’s usually — parents should be there. In the business cases, it might be, you know, their private counsel. Somebody else — and if you get them all together, I think it’s much more successful in reaching a settlement.

There are some cases, especially with some of these career litigants, it is better not to have them there because they hire lawyers saying I want to get rid of this one, and if they’re there they just like to be in the courthouse and they like to keep things churning.

I think as an attorney you should be in charge of the settlement conference, not necessarily the judge. That goes to evaluation. Some lawyers come in and tell me I know this is a PI case, Judge, but I really would prefer that you not give an evaluation in this, for their own reasons. And I think that we have to respect that. It’s very difficult if both sides – one says I really want — it would really help if the insurance carrier knows what you think about this case and the plaintiff’s attorney says, Judge, we would really prefer — or vice-versa. I think you can tell the judge what kind of pretrial you want, facilitative, evaluative, whatever. And that should occur I think outside of the parties’ presence.

MR. RUFFALO: That’s an interesting point because the nature of a pretrial, particularly when a judge is invested in trying to get a difficult case settled, sort of requires you to walk a very thin line between evaluator and the one who will ultimately decide the case if it doesn’t settle. How do you view that conflict?

JUDGE LESTON: Some of these are judgment calls when we talk about the party being present. At the initial pretrial the presence of the parties doesn’t add a lot necessarily. Maybe we have 10, 12 pretrials on a Friday morning. We set them every 15 minutes. We really haven’t got time to talk to all of the parties. Realistically, were out trying to size up the case.

Now, if the attorneys give you a little heads-up ahead of time saying, "Judge, we’re pretty close on this, we’re going to bring our clients in, would you have time to talk to them?" okay, well, then we’ll set aside a half hour. We’ll set a time to discuss it with the respective parties, the value of the cases.

Otherwise, we also conduct pretrials where one of the purposes would be to see where we’re going with the case, what needs to be done, more of a litigation-type preparation than a pretrial. So for those, the presence of the parties isn’t necessarily as important.

I think all of us would probably handle it the same way in regard to valuation in that we’ll let each side speak and give their pitch. And then, almost always, the parties will ask for what the court thinks about this. They would like to go back and tell their client. With the attorney’s permission, we speak to each attorney one at a time, so they can be candid with us and we can be candid with them. That seems to be productive.

When we speak to you individually, and I think I mentioned that before, if you have a number that’s not for publication, make sure you indicate that to the judge and ask the judge to please note it. What happens is, you put down plaintiff needs 50,000 although he’s got a demand of 80,000. Then the next pretrial comes around, the judge opens up his notes two months later and says I see we’re at 50,000, and the attorney, after he faints dead away, suggests that, no, no, he was at 80,000 and I must have misread my notes. Make it clear so you’re not revealing unnecessary secrets. But, you know, that’s a judgment call, as to when you want the clients in. And give the judge a heads-up if you’re a going to need more than the 20 minutes that you’re normally allocated. Now, of course, one out of three pretrials is going to cancel. That’s why we stack them up.

JUDGE WEBSTER: And I would have a little different spin on what Pat said in that I don’t know that it’s bad to have your clients come in and sit and watch what is happening and not actually speak to the judge. I think it shows your client, number one, why they’re paying the bills for you to come to court and why it does take as long as it does, and it does give your client an opportunity to see settlements in actions, see other people’s cases.

I think litigants should come to court more often because it is their case, and maybe they should see that the insurance company is not ready and here they’ve come for the second time. You know, what is the matter with the insurance company? And it becomes sometimes so collegial that cases last longer than they should.

And judges can, if we have available jury rooms, do two pretrials at one time. You can go and talk to a litigant and attorney in a jury room and then do another pretrial while they’re talking about whether they should take 20 or 25. So I don’t think it’s necessarily bad for a litigant to come to court and not actually talk to the judge because they, just like you get disappointed, they get disappointed, too, and maybe they say this isn’t worth spending another year battling over.

JUDGE WHEATON: I think that’s especially true if your clients are professional people. I told Steve I had to bring this up. The most difficult litigants to get to settle are professional people, anybody in the medical field. When I’ve had neurosurgeons and gastroenterologists, dentists, veterinarians, optometrists...any profession where you may have to have kind of a big ego to go into it, they really get an idea that they are right. And coming to court is sometimes a very educational experience for them. And I know when I took my mother to the emergency room I ran into a doctor and he said, oh, I remember you. You settled our case. You entered an order — and I had no recollection of it whatsoever — but it was really very impressive for him. And he said, oh, that must be very stressful. I said, no, this is stressful, being an emergency room doctor. And he said, oh, I do this every day.

So it’s really a matter of perspective. There’s something about having a judge make a recommendation. The biggest case that I ever settled was a hundred million dollar case, and they were ripe for settlement because there were some tax advantages that would accrue to them if they settled the case. And so they just followed me down the hall to our very large conference room. There were about 25 people in the conference room, and I still had my robe on simply because I didn’t have the opportunity to take it off, and I think that made all he difference in the world. Somebody wearing a symbol of authority like a black robe adds a lot more decorum and credibility, a lot more cachet than if you’re sitting there just in your shirt sleeves.

But it’s also your job to educate your client what to expect from the pretrial and tell them the judge probably isn’t going to recommend everything that you want and the judge is going to see the other side of the story and there are always two sides to it and that’s what the judge is trained to do. So you’ve got to prepare your clients for the pretrial as well, let them know what’s going to happen and what’s not going to happen.

JUDGE WEBSTER: And you can prepare the Judge. "Judge, my client is going to come in. Could we go into your office? Judge, would you mind putting on your robe for this client?" I mean, little things like that that we might not think about because you’re between cases and you didn’t have a contested call. And it doesn’t matter to us. And if that is going to help and we don’t — we’ve never met your client. I know I’ve had situations where I’ve had a bunch of people in a jury room because there’s more chairs and a lawyer said, you know, my client would really prefer to come and talk to you back in your office. Well, if that’s going to help settle the case, it’s not difficult for us to do. And I think lawyers may feel reticent to ask that, and I don’t think any judge would think that was an inappropriate request. If that’s going to help resolve this case, you know, there’s no harm, no foul.

JUDGE WHEATON: Just give us two minutes to clean off our desk.

MR. RUFFALO: Well, that’s kind of the area I next wanted to talk about a little bit. We’ve talked about what makes you cringe in terms of how we as advocates and our clients as litigants approach pretrials. How can we as advocates do a better job of approaching pretrials in your view? What are we not doing that we should be doing?

JUDGE LESTON: We talked a little bit about the contents of the memo. Collegiality helps, a little candidness between the attorneys. The difficulty with that is that it’s not a small neighborhood anymore. We’ve got a lot of attorneys. We don’t know everybody we practice with. It’s not the good old days. And it wasn’t the good old days in the early ’70s when I started. And apparently it’s never been the good old days. So I’m not sure what the good old days were, but more typically you would know the attorneys on the other side. And those that are in court and those that are litigating daily do, in fact, know the opposing attorney. As I look to the room, I’ve probably really seen half of you in court, and there’s certainly nothing wrong with that. But if you don’t know who you’re dealing with, it’s a little harder to be open and candid in some of these situations. But when that does happen, it’s just a pleasure for the judge to deal with.

JUDGE WEBSTER: I also think that the presentation that not only not being adversarial but coming into a pretrial prepared, knowing that most likely the judge is going to have both sides talk with everyone present. And if your client is there you’ve got to be prepared, you’ve got to have the best part of your case to put on the table, acknowledge the weakness, be honest about it so you’re credible and then have something new to say when you’re privately speaking with the judge. Now, you’ve heard my case, I understand that my client has an aggravation of a pre-existing degenerative back, or whatever, and my client’s grandfather is on his deathbed and he really wants to settle this case within the next two weeks. So have some more information to give the judge direction. I don’t see that very often.

JUDGE WHEATON: I prefer to have the attorneys come in to a pretrial first because I think they can be more collegial there —


JUDGE WHEATON: — and give me a more candid assessment of the strengths and weaknesses of their case.

You as attorneys have to gauge whether your client is ripe for settlement. Sometimes after they’ve gotten a couple of your monthly bills and they realize how much the principle of the thing is going to cost them they’re much more amenable to being realistic about what they want.

If you can figure out if there’s something other than monetary damages that your clients would be willing to settle for – like the case I had today, it settled primarily because one of the parties agreed to move his office out of the building so that these people didn’t have to see each other on a daily basis. Now that was impossible to put a dollar price on.

So exercise your own creativity in trying to come up with something that would soften the deal but make it more palatable to the other side.

JUDGE LESTON: These guys are tough, huh? Bonnie makes us move out of the office, Hollis makes a guy move out of the neighborhood. Get out of town.

JUDGE WEBSTER: The municipal law I think is a golden opportunity in cases where there are injuries — I had an attorney, and I don’t know, you might have been involved, in a case where a child was killed on a railroad track. The settlement involved all kinds of park districts, towns, insurance companies. The family was very wealthy, and they ultimately decided what we want is a bridge. We want a bridge over this railroad track so other kids don’t get killed. Who was involved in that case? There are people in this room, I’m sure. There were so many lawyers involved in that case. And I thought what a wonderful way to resolve that case because it protected future generations of kids going from their school to their home, it satisfied the parents who weren’t looking for money. It was good PR to build this bridge, and they named it after the —

JUDGE WHEATON: It’s still not built yet.

JUDGE WEBSTER: Well, they’re still trying, but it will be built. But I agree with Bonnie that there are usually creative things to think about other than money to settle most of these cases.

JUDGE WHEATON: And, by the way, the guy that Hollis made move out of town is John Houlihan’s former client. I stress former.

JUDGE WEBSTER: And he’ll be around for another year.

JUDGE LESTON: We like a candid approach though. We had one last Friday, where an attorney came in, we just had the attorneys in, and said there was a very, very high demand which was completely unrealistic. The defense attorney responded with nothing in response to an unrealistic demand. But the case was moving toward a ripe time for settlement. The plaintiff’s attorney said basically — he said "my client is nuts, the referring attorney is nuts, they’re never going to give us any money at all if we maintain our demand. Why don’t you make a recommendation around thus and so figure." The defense attorney said "around thus and so figure might be a realistic recommendation and the case can move." And, in fact, it was. The attorneys had realistically evaluated the case between them. But it wasn’t going to resolve unless they could both approach their client and say this is what the judge thinks might be a reasonable way of settling the case. And so if you really want to settle the case, that is a way to approach these things, with a little bit more candidness than you might otherwise offer.

And another thing that I do, and I’m sure Hollis does, too, in the law division, is after we value the case or have a somewhat realistic idea of the valuation is, we move a lot of cases over to arbitration. I move them there fairly early. If you’ve got 8,000, 6,000, 12,000 in medical expenses, you’re not going to get over 50,000. It’s just not going to happen. So why don’t you take your case over here and try it in two hours. You don’t spend any money. You don’t spend $5,000 to bring the doctors in. You don’t depose the doctor. And everybody gets an idea of what the case is worth. Well, maybe you don’t get paid. Maybe the insurance companies reject it and you get forty-nine five. But they don’t always reject and you haven’t spent any money. It gives your client and it gives the other side a number to look at. It’s a way more expedient method of resolving some of these smaller cases.

And 50,000 is not a small sum of money to a lot of people, to a lot of people that are injured. But you’re not killing yourself. You get an opportunity to earn some money on the case without putting in 500 hours on a case that you’re going to recover $30,000 on. The litigants get a prompt resolution on the case because they’re in and out of there in 90 days. I don’t think it’s much more than that. You might be able to spend a little bit more on cases with discovery, but you haven’t beaten up your client’s pocketbook and you haven’t beaten up your own pocketbook in preparing the case for trial.

I always advise the litigants that if they then reject an arb, I believe our policy is it comes back to the same judge who sent it to the arb for trial. I think that’s what we normally have done. If I have sent a case to arb and someone rejects it and it comes back, I believe it gets reassigned to me.

JUDGE WEBSTER: It goes back to arb.

JUDGE LESTON: It goes back to arb initially?

JUDGE WEBSTER: Then he sets it for trial. If he’s overbooked, then it’s shipped out.

JUDGE LESTON: But I also make it clear to them that if they wish to go to trial and reject, they’re not bound by the $50,000 limit. They have a right to go to more than that if they come back.


JUDGE LESTON: But it is a very expedient way of settling the case in a litigation mode, as opposed to simply mediation, which we’ve already talked about.

MR. RUFFALO: In terms of preparing for a pretrial, you know, some judges look for a pretrial statement, a case statement or a position paper which sort of describes (narratively) where we are, where we last left the table in settlement discussions if there were any, et cetera. Is it fair to say that we could do better as lawyers in spending a little bit more time on that type of statement not with the one page pretrial memo but with sort of a more thoughtful approach to analyzing the case?

JUDGE WEBSTER: The more information you can give to us, the better we’ll be. Why defendants don’t take advantage of sending us a pretrial memo more often than they do I don’t understand, especially in a business case. In a case where there’s a third-party complaint or a counterclaim, if we have two pretrials or three pretrials, it gives us a much better idea of what the global situation is between the parties. And if there’s a paragraph saying, you know, we spoke three weeks ago, we spoke last week, here’s where we are money-wise, et cetera, I think that is helpful, very helpful.

The more specific a memo can be — I don’t think — like Pat was saying, we don’t need necessarily a one page pretrial memo that spends three-quarters of it on the facts of the incident and then the lawyers come in and say, oh, well, negligence isn’t an issue. Then we don’t care how the accident occurred and all the specifics and what intersection it was at. So I think more specific memos, longer are more helpful. And I’m sure with you they’re even longer.

JUDGE WHEATON: Yeah, but I get most of my information from the attorneys. Because I get the feeling that a lot of the pretrial memos are for the benefit of the clients and the real meat is what comes out of the pretrial when you’re sitting there candidly telling me about the case.

Most of the time I know pretty much what the case is about by the time you get to the pretrial conference because I’ve heard the motions to dismiss and the motions for judgment on the pleadings and the motion for partial summary judgment, all of which have been unsuccessful. So I’ve got a pretty good idea of what the facts of the case are. What I’m interested in is what your current posture is as far as settlement, what your demands are and just then we go from there.

MR. RUFFALO: Do you feel it’s effective to forecast your impression of a case or a defense, not so much to rule in a pretrial setting, but to express concerns over a burden of proof or a damage theory as a means of facilitating a settlement?

JUDGE WHEATON: I think so. I think it makes the client and to some extent the attorneys look more critically at their own case. And I always preface anything that I say by I haven’t heard the testimony and I haven’t seen the evidence, but if what your attorney is telling me actually comes to pass in a trial, then I think you’ve got a real problem here; or it’s your burden of proof and, you know, what you’ve told me is a little bit shaky.

JUDGE WEBSTER: I think in jury trials that is more dicey.


JUDGE WEBSTER: I really am very uncomfortable in forecasting a really important ruling in a pretrial conference, certainly to articulate that that’s an issue and that’s a risk on whether that statement is going to come in under the dead man’s act or not or whatever. But in a big case where they’re really asking me to kind of pre-judge a ruling, I decline to do that. And I also tell them I’m here to be your mediator to help you settle the case now, but once the jury is picked or once we’ve started our motions in limine the hat’s changed. And if you want to continue settlement discussions you’ll have to do it outside. Because I think it’s unfair then — to tip the balance. And I’ve had too many cases where the whole case pivoted on a ruling, you know, a court ruling, not a jury finding. And if they want that, they’ve to come — they should understand what the risks are on either side.

It’s very useful certainly on the third floor in divorce court. I know I did it there.

I don’t know, Pat, you may feel differently.

Bonnie is the trier of fact on most of hers so —

JUDGE LESTON: I think that you both have discussed two different fact situations. I think you’re talking about a potential motion in limine or question of law, and Bonnie was talking about how evidence is going to come in.

Particularly in Bonnie’s instances, it’s very easy to say to a litigant, either their attorney or the litigant themselves, if this comes in this way my experience with jurors is that A, B and C happens. And we have a certain type of jurors here, and these are problem areas.

In regard to the more technical legal questions, you don’t want to rule on them before you’ve seen the motion in limine and the response. I think it’s fair to give a gut response to say "isn’t it the law that" or "what’s your impression of the cases." Now, one or the other is going to say, "no, I’ve got a line of cases." And we’re all open minded. We don’t know all of this stuff. That’s why we read these briefs ahead of time. So I think the litigants are pretty much aware that if we’re giving an off-of-the-cuff suggestion, that this is an area of concern. That doesn’t necessarily mean we ruled on it.

But sometimes to bring these up during the course of the pretrial also expresses — well, suggests a potential weakness in someone’s case which may effect negotiations. And again, this we might do when we’re alone with one of the attorneys as opposed to doing it with the two attorneys present. I don’t hesitate at all when I’m alone with the attorneys, to express an opinion of that nature and suggest that it might be a problem, that the other side has a strength that they may not be considering. But I don’t prejudge them. We wait for the case law, but we use the discussion to suggest weaknesses.

MR. RUFFALO: Along the same lines, do you feel that some litigants abuse the opportunity to have a pretrial who don’t truly want to approach it for settling it but rather want to sort of gain some insight as to what you may feel about their case or their opponent’s case.

JUDGE LESTON: I don’t really feel that that’s much of a problem. I think if I felt an attorney was actually just doing that, we wouldn’t have much of a pretrial. I haven’t seen that as a difficulty.

I think everybody has approached it with good intentions. Not always prepared but with good intentions.

JUDGE WEBSTER: Only those career litigants who love to come to court for pretrials each and every day if they could to perpetuate their cases.

I did want to comment on one thing I’ve seen that’s developing a bit of a cottage industry, and that is the notion to enforce settlements. And I did prepare this little yellow sheet that I actually prepared for a Civil Law and Practice Committee meeting. I’m seeing more and more settlements break down after they’ve been reached for one reason or another, many of them business disputes, and I would encourage you if at a pretrial you do reach an oral settlement that you ask Court Smart to be turned on and get your clients in the courtroom or get them to sign the order that’s prepared setting out at least broadly the terms of the settlement because I’m — I don’t know why. For some reason in the last few years I’ve seen many more evidentiary hearings relating to what was said in the hallway outside of the courtroom.

I’ve had several of those just in the past couple weeks in order to determine whether the settlement should be enforced or not. And I don’t know specifically why that may be happening, if there are just more lawyers and there’s a breakdown of communication or there’s too many lawyers involved for one side and there’s lots of cell phones going on and something gets lost in the translation, but it really does your client a disservice if you believe the settlement is reached and then, boom, it all falls apart and you’re starting back at square one and you need your 218 order and you’re going to trial.

So you’ve got Court Smart there. You can ask that it be turned on. If it’s during lunch, they’ll turn it on. But if a settlement is reached after 5:00, get it down on paper.

JUDGE WHEATON: And that is a problem because the oral settlements that you reach, even if you put them on the record and you’ve got a Court Smart transcription, it doesn’t include everything that a good lawyer would put into a written settlement agreement.

And one of the cases that I had recently we reached a settlement, we put it on the record, they were going to trade drafts back and forth, and of course there were things in the draft that hadn’t been in the settlement, but any good lawyer would have included those. And: Well, this is new, Judge. We never talked about this. And, you know, then it threatens to blow up and you’ve got to do some patching.

But a lot of times I have attorneys when they put something on the record say this is our settlement in principle but it won’t become effective until we actually have a written dismissal order pursuant to a written settlement agreement entered. And that’s the way you can sort of cover yourself. That leaves the possibility that the whole thing is — the wheels are going to fall off the settlement, but I think you have to do that in order to protect yourself against your own malpractice.

MR. RUFFALO: These are questions that came up. Is it harder or easier to help reach a settlement with at least one, if not both, of the litigants pro se?

JUDGE LESTON: It’s a disaster.

JUDGE WHEATON: Awful. Awful.

JUDGE LESTON: Because they have no sense of what a trial involves.


JUDGE LESTON: No sense of the preparation. They really haven’t got a clue of what the law is.

JUDGE WHEATON: And they’re not paying attorneys’ fees.

JUDGE LESTON: I don’t have a pretrial with pro se’s in my chambers. I have talked to them from the bench, I’ve had a pretrial from the bench. But in our division we don’t see many. I don’t know how to put this, but the pro se’s do not do particularly well. They often have a certain axe to grind, and they become very difficult to deal with. My experience is that we’re better served by ruling on the motions and either disposing of the matter or setting it for trial after considering the motions that are filed. The pretrial conferences with pro se’s have been, I think, a waste of time.

JUDGE WEBSTER: I think there are certain pro ses though that pretrials can be very effective, and that’s when you use the opportunity to spend some time alone with the pro se if we feel comfortable. And sometimes these people are dangerous people and we can’t do it, but sometimes all they want is really to sit alone with the judge and tell their story. And when the judge says that’s a sad story but, you know, it’s going to come up with not much and you’re going to spend two weeks here and I feel bad for you but this is the reality, they’ll say, okay, thanks. I’ll take my settlement and go away.

But, again, those career litigant pro ses of which I have several in the courtroom every day, pretrials with them are just – they’re —fuel to the fire.

JUDGE WHEATON: And we all know the nut cases. I mean, you think there are probably a thousand counties in the United States, and each county has its little share of its cadre of nut cases. It’s frightening. But it’s very difficult to deal with pro ses.

JUDGE WEBSTER: And sometimes pro ses can do much better than you think they can trying their cases. Sometimes the jury likes a pro se. They fumble and they don’t know exactly what to do, but they’re honest and they believe in their case. Just like there’s different kinds of lawyers, there’s all kinds of pro ses.

MR. RUFFALO: Right. Okay. Next question. What are your thoughts about having both of the parties together for a portion of the pretrial settlement conference?

JUDGE LESTON: I think it is useful on business cases.

JUDGE WEBSTER: Business cases definitely.

JUDGE LESTON: On personal injury cases, I think both of the parties, if we’ve got an insurance carrier and adjustor, are more sophisticated, much more sophisticated, than the injured party. I’m not sure that accomplishes anything. But in business cases I think it’s a definite plus. And then we separate them out for further discussion.



MR. RUFFALO: Last question. Is there a common theme among the cases that you’ve pretried and have been completely unable to settle regardless of how much effort you put in or the cooperativeness of the advocates? What are the hardest types of cases to get resolved?

JUDGE LESTON: Where the defense wants to pay too little and the plaintiff wants too much. (Laughter) That’s been the recurrent theme that I’ve seen.

JUDGE WHEATON: The ones that I’ve seen are when their issues involve other than money and most of the time when they involve questions of public policy or are real high profile cases.

JUDGE WEBSTER: And I guess I’ve seen a dramatic increase in the filing of defamation cases, and usually defamation cases somebody is so mad that it doesn’t matter how much money, they just want these terrible defaming words that injured them so badly to be said in public once again. They don’t care how much money. And we just have a lot of those, and those are very hard to settle.

JUDGE LESTON: I know we’re running out of time. I asked Bonnie to tell that story that she told about the judge from Mississippi.

JUDGE WHEATON: Oh, yes. No, from New Jersey. I went to the National Judicial College in Reno — well, to back up, this was the case I had with the 25 people where — worth a hundred million dollars. And I dragged them all back into our very largest conference room, and I tried to break the ice a little bit and I said: Well, the deputy is bringing in some coffee. We’re all going to have some coffee. But you notice this room has no bathrooms and no windows. You’re going to stay in here until you settle it. Well, they kind of laughed. And then I said: Well, I’ll tell you an experience that I had at the National Judicial College in Reno. One of our instructors was a judge from Southern New Jersey, and they get a lot of lawyers from New York that litigate. And he had a particularly difficult case and the attorneys didn’t want to settle it or their litigants — their clients didn’t want to settle it. And he says: Well, why don’t you tell him that the judge is just a big dumb tomato farmer from South Jersey who doesn’t know the law? And then there was a long silence, and one attorney said: Well, Judge, with all due respect we’ve already told him that and — [Laughter.] — and he said big dumb tomato farmer. Those weren’t my words.

MR. RUFFALO: Well, we want to make sure you know that Hollis’ handout in the back for you. Our committee sign-up sheets are back there for you. Please try to participate. It’s your Bar Association.

Thank you.


Steven M. Ruffalo graduated from the University of Illinois at Chicago in 1984. He began his professional career in the Division General Counsel’s office of the Unisys Corporation in 1988 while earning his law degree from the John Marshall School of Law and his Masters in Business Administration from Rosary College. Since joining Fuchs & Roselli, Ltd. in 1990, he has been serving the litigation and pre-litigation needs of many small to mid-sized family and closely held business organizations. Having significant experience through litigating and trying a wide range of chancery and law cases in Illinois, Wisconsin and Indiana (including contract, statutory, business tort, partnership, shareholder, securities and real estate disputes, injunctions resulting from employee covenants and business interference claims, state and federal R.I.C.O. claims, and mortgage and mechanic’s lien foreclosures), Mr. Ruffalo has achieved an "AV" rating (very high to preeminent) among his peers for legal ability, professional reliability, diligence and ethics.

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