Leonardo Angiulo: Who Wins in the NFL Concussion Settlement?
Tuesday, September 03, 2013
Win, lose, or draw?
A review of page 3 of the Settlement announcement shows us a break down of the agreement that's fairly standard. Any settlement will declare who is getting paid, how much is going to be paid, and when that amount will be paid. In addition, an important part of any settlement is that paying out, or accepting, a settlement does not acknowledge a “win” or “loss” for either side.
While I have discussed the difference between mediation and arbitration in a past column, the take away is that after a lawsuit is filed, but before trial, there are many opportunities for the two sides to sit down and work out issues. In fact, there doesn't even have to be a formal mediator involved as there was in the NFL case. In many cases, the two lawyers simply make phone calls where each side claims the strengths of their case, points out the weaknesses of the other party's claims and then talk about fair settlement figures. Importantly, whether your advocate is in a formal or informal setting, any statements made in furtherance of settlement are generally not admissible at trial whether you are in state or federal court.
So, why bother talking about settlement you might ask. One commonly held answer to that question is that you never know what will happen at trial. In many ways settlement is designed to provide control to a situation that is otherwise left to chance. Risk averse people might like a settlement, even when the terms are difficult to accept, because it minimizes the risk of a large loss.
Of course, some parties like settlements simply because it ends litigation without further publicity and embarrassment. Litigation tends to be a source of hardship for people and institutions in the public eye because the discovery process used to develop evidence for trial tends to bring up documents and issues that were never meant for public consumption. Take, for example, the tobacco litigation cases where internal investigations and memoranda about marketing strategies were uncovered that tended to make tobacco companies look bad. Like giving free cigarettes to elementary school kids bad.
As it stands now, neither the NFL or the plaintiff's in the concussion litigation are finished with this case. The settlement still needs to be approved by the judge and all the players claiming damages. If this case does ultimately end with a settlement it's fair to say it isn't a win or a loss for either side. Its more like a tie. I guess that makes litigation more like soccer than football because we have ties and no playoffs.
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