The Benefits of a Good Settlement

Posted on Friday, October 01, 2010 at 12:00PM
Posted by Andy Schlenker

Chairman’s message

Andy Schlenker
LDF Chairman

Anybody who has been involved in a legal action knows all too well the level of stress that is involved. First and foremost, the uncertainty surrounding how the case will end is ever present. Will I win or lose? In addition, before the case is over, one must endure numerous anxieties, including the mere accusation of wrongdoing, attempting to perform your job while under the magnifying glass of your superiors and suffering the social stigma of the accusation. Finally, those unfortunate individuals going through this unpleasant process also experience the general loss of control over the outcome. Seemingly, their fate lies in the hands of others who may be unpredictable at best.

As law enforcement officers, we are charged with the duty to enforce the laws fairly, appropriately and with some level of discretion. When we are the accused, however, we become completely dependent on the decisions of others and their willingness to administer the process fairly. Sometimes that happens and other times it does not.

The experienced-and-seasoned panel attorneys of your Legal Defense Fund will do everything within their power to defend you and ensure that your due-process rights are protected. This includes investigating the case, seeking judicial involvement to protect the integrity of the process as well as zealously defending your interests. Nevertheless, regardless of whether you are right, wrong or somewhere in between, the litigated outcome may not be an accurate reflection of the truth. Often, cases come down to what is provable as opposed to what is truthful. (Although we must hold fast to the belief that the truth is easier to prove than a lie, this is a general proposition and not guaranteed in every case.)

The one power we always maintain is the ability to decide when and whether to settle. This control belongs to us and us alone. The attorneys will, of course, make recommendations (sometimes strongly), but the decision on whether we should settle a case always lies with us, the clients.

When faced with an untenable choice (imprisonment or termination), the decision is relatively easy: Fight as though your life or career depends on it because it may. However, in the vast majority of cases, the result is not as dire. Often, your attorney can and should explore the potential for a settlement. When the decision is presented to you, the negotiated terms will likely lie somewhere in the middle of a complete victory or tragic loss. The compromised agreement will most likely feel as though you have to swallow a small bitter pill (which is the same feeling the other party also likely has). As the saying goes, the perfect settlement leaves nobody feeling happy or victorious.

Keep in mind, the benefits of a settlement are numerous:

First, it puts a conclusion and an immediate end to the stress, anxiety and uncertainty of the existing situation.

Second, it puts you squarely in control of the outcome. You must agree to the terms of the settlement, and have the opportunity to bargain for and secure any terms that are essential to you.

Third, it allows the parties to construct the points of an agreement that are not otherwise available through litigation (for example, holding the matter in “abeyance” for a period of time during which, if nothing else occurs, the matter gets dropped; or, in appropriate cases, a last-chance agreement is put into place).

Fourth, in cases where you have some level of culpability, by accepting a level of responsibility, you increase your chances of a better working relationship in the future with supervisors. For example, perhaps you admittedly engaged in some form of minimal wrongdoing or made a human error, but you also have strong procedural grounds (POBR violations) to challenge the imposition of discipline. In such a circumstance, your procedural fight may be successful and you escape the imposition of discipline. However, afterwards, you must continue working under the same supervisors who may believe that you “got off on a technicality,” often as the result of an error committed by the very same supervisors. What level of favorable discretion would you expect from that supervisor the next time you err on the job? In contrast, if you negotiated a settlement, shook hands and reached an agreeable resolution, your relationship with your supervisors could be vastly improved and you may expect much more favorable treatment in the future.

Whether to fight, surrender or settle is a key decision that you ultimately will choose. Please be sure to explore with your attorney all of the potential outcomes that may be available to you.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.