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VIDEO: Medical Malpractice

Here at Velletta and company we work in the area of medical malpractice, amongst other things.

We work with some top notch medical and healthcare advisers who give us advice on the technical medical matters in your claim, in order to allow us to better focus on the legal and technical issues to properly prepare your case for trial. Not every case is a viable medical malpractice action. If you’ve been the victim of what you believe is medical negligence consult with us. We pride ourselves on analyzing the case on figuring out what is the standard of care, whether there’s been a breach and whether that breach has led to damages

In the cases damages have occurred, we’re happy to assist in moving your case forward and getting you the compensation you deserve.

Gregory Rhone obtained his law degree at the University of Victoria after studying Sciences, English, Classics, Political Science and Philosophy as an undergraduate. He articled with Gordon & Velletta and was called to the bar in February, 1999. Before joining the firm as a civil litigator, he was in private practice.

 

What is the meaning of a Common Law Spouse?

Many people in Canada and British Columbia live together before becoming legally married. Some people live together while never having the intention of becoming married. It is important, however, for people in all of these circumstances to understand when their relationship is considered ‘marriage-like’ pursuant to the laws of British Columbia. This is because, if a relationship breaks down the definition of ‘marriage- like’ becomes important in determining what is, and what is not, considered family property.

 

Under the provincial legislation of British Columbia, the Family Law Act (FLA), a person is considered a spouse of another person if those two people have lived in a ‘marriage-like relationship’ for a continuous period of two years or, if they have a child together.  If you are a common-law spouse or a legally married spouse and the relationship breaks down, the date the relationship became ‘marriage-like’ is the date all acquired property is family property.[i]

 

This seems as though it is fairly straightforward, however modern times are changing and certain indicators of what a ‘marriage like relationship’ is are evolving.  For example, the courts of British Columbia have found couples are becoming more and more independent of each other by having separate finances and sometimes separate homes. It is important that both parties understand when their relationship is “marriage-like” so that they can undergo steps, if they wish, to protect their interest in the event of seperation.

 

The following are highlighted characteristics from the courts as to whether or not a couple will be considered in a “marriage like” relationship:

  • How do the parties intend to portray themselves in society?
    • Did they intend to get married?
    • Did friends believe they intended to be together forever?
  • Did they have a healthy intimate life?
    • If they weren’t intimate, were they affectionate to each other in other ways?
  • Did they partake in social activities together?
  • Did the parties live under the same roof?
  • What were the sleeping arrangements?
  • Did anyone else occupy or share the available accommodation?
  • What was the conduct and habit of the parties in relation to:
    • Preparation of meals,
    • Washing and mending clothes,
    • Shopping,
    • Household maintenance,
    • Any other domestic services?
  • Did they participate together or separately in neighbourhood and community activities?
  • What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
  • What was the attitude and conduct of the community towards each of them and as a couple?
  • What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  • What were the arrangements concerning the acquisition and ownership of property?
  • Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  • What was the attitude and conduct of the parties concerning children?

 

 

For example, in the case of Weber v. Leclerc, 2015 BCCA 492 the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed. The judge applied the correct legal test, and her findings are entitled to deference. In light of the objective evidence and the proper inferences drawn by the trial judge, she made no error in finding that the couple were in a marriage-like relationship.

 

Further, in the case of S.L.M.W. v. M.R.G.W., 2016 BCSC 272 the applicant and respondent owned and maintained two residences. As a matter of law, it is established that parties can maintain two residences and still be in a marriage-like relationship. In this case, the respondent maintained a separate residence for work purposes and this fact did not negate the court finding them to be in a marriage-like relationship.

 

As you can see understanding when a relationship becomes ‘marriage-like’ may not be straight forward. Velletta and company is a full service law firm and if you need assistance in this area, or wish to form a cohabitation or marriage agreement, please contact us.

[i] This is subject to some exceptions known as excluded property. Please note that if the parties married before they were living in a ‘marriage-like’ relationship then that is the date acquired property becomes family property.

 

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education.

VIDEO: Changes to Scope of Work

In any project, whether it is a large residential development or a small residential renovation, there are often changes to the scope of work that take place over the course of the project. In a large project a municipality might require changes in order to issue approval, or a problem, such as inconveniently located bedrock, might become apparent that needs to be overcome in order to continue with construction. On a smaller project, gutting some walls might reveal shoddy work from a previous renovation, or water ingress or mould that should be remedied while the wall is open. In all of these hypotheticals, if the contractor did not include this work in their original quote and scope of work, then a change to the scope of work becomes necessary.

 

When there is a change to the scope of work, it can be problematic, because the work is already underway and suddenly there is the need to deal with the uncertainty created by the change in scope. The contractor will want to ensure that they are fairly paid for the additional work required by the change in scope. The owner or client will want to ensure that the contractor does not take advantage of the situation and bill an overly large amount for the additional work. It may be a delicate situation for both parties. The homeowner might feel like they are held hostage because their house is hallway ripped apart and they don’t want to get into a dispute with their contractor and delay the completion of their home. The contractor may have invested time and money into the project and might fear that getting into a dispute over a change to the scope of work will prevent or delay payment for the work already completed.

 

In large construction contracts, there is generally an independent consultant who acts as an intermediary when changes to the scope of work are needed. When the need for a change becomes apparent, a formal written change order will be issued to the contractor, the contractor will formally quote the change, and provide the quote to the consultant, who determines whether the quote is reasonable and in theory protects the interests of both parties. There may even be provisions for arbitration if one party does not agree with the consultant’s decision on a large change order.

 

For homeowners, it is cost prohibitive to have an independent consultant, and the pace of change on a residential project can be rapid, especially if the project is a residential renovation where things might be uncovered during the initial demolition phase. While there is no independent consultant on a smaller project, the parties themselves can still help avoid problems by clearly communicating. If the homeowner wants a change, that should be clearly specified and described. If the contractor thinks they are being asked to do something that was not included in the original scope of work, then they should deal with that issue immediately instead of putting it off until the final bill. Where both parties agree that something is an addition to the scope of work, the contractor should prepare a written quote for that addition – this is fair to both parties, the contractor is entitled to be paid for the extra work, and the homeowner is entitled to know what their requested change is going to cost.

 

While ultimately homeowners and residential contractors cannot implement the extensive procedures that are used on larger jobs, the same principles apply. The scope of work has to be clearly defined at the outset, for the benefit of both parties. Changes to the scope of work need to be clearly defined, and ideally agreed upon in writing through a written change order that defines the addition to the scope of work, and the compensation payable for completing that addition. Following these strategies should help both homeowners and contractors avoid disputes regarding the scope of work on a project. If the worst happens, and such a dispute does arise, it may be time to consult with construction litigation counsel. Velletta & Company is pleased to assist clients facing a construction litigation dispute, whether they are homeowners or contractors.

 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Contact Cadeyrn Christie

 

Builders Liens and How to Get Paid in Construction

The construction industry is one of the places where disputes often arise over unpaid bills, the scope of work, and whether or not work is done correctly. The end result is that tradespeople are often left fighting to get paid for the work that they performed on a project. Add in the fact that many construction projects are done based on a verbal agreement and a handshake, and you have a recipe for contentious disputes. Even worse, if you are a subcontractor, the head contractor with whom you reached an agreement might go bankrupt, leaving you with a dry judgment that cannot be easily enforced.

 

The law has evolved to recognize that disputes often come up in construction, and that there are unique factors that may make it difficult to get paid. The culmination of the legal solution to this problem is the British Columbia Builders Lien Act (the “Act”). In order to protect contractors and subcontractors, the Act establishes special remedies. In order to qualify for these remedies, you must comply strictly with the Act. If you miss a deadline or make a mistake in filing your lien, your lien will likely be invalid and may be struck if the owner of the property, or anyone else interested in the lien claim, takes you to court. If you lose in court, you may also have to pay the successful party’s legal fees.

 

The Act allows a person who supplies work or material to an improvement on a property, and has an unpaid invoice, to file a builders lien against the title of the property. The lien then goes on the title, like a mortgage or other encumbrance. People who search the title of the property, such as people who are interested in purchasing the property, will see the lien and be alerted to your claim.

 

Once you have filed your lien, the owner of the property and any head contractor may be more willing to negotiate the payment of your invoice. If filing the lien is not enough and there is still a dispute, then You may ultimately have to take your case to court and enforce your claim of lien.

 

The lien gives you security for your claim, against the title of the property that you worked upon. Even if the head contractor goes bankrupt, and you have no contract directly with the owner of the property, you can still potentially recover at least part of your unpaid invoice from the owner. This may seem unfair to owners at first, but keep in mind that the tradespeople who worked on the property improved the property and presumably increased its value.

 

Unfortunately, while the Builders Lien Act provides valuable protection to tradespeople, it also is extremely complicated, and cannot be fully explained in a short article. The Act also involves a series of holdbacks kept all the way down the chain from the owner, to the head contractor, and to the sub-contractor. Unfortunately, these holdbacks are often not dealt with properly, especially on smaller projects where the parties may be used to doing things more informally. If the holdbacks are dealt with improperly, it can further complicate matters.

 

If you are facing a builders lien issue, it likely makes sense to consult with a lawyer. There are tight timelines involved, and if you fail to file your lien within the timelines, then you may completely lose the right to file a builders lien. In some situations the deadline can be 45 days from when you finish the job. This makes it a very tight timeline indeed when you factor in that many invoices are not due and payable until 30 days after they are issued. Because of these tight timelines, you should talk to a lawyer as soon as possible If you get the suspicion that your invoice is not going to be paid on time.

 

If you are facing a builders lien situation, Velletta & Company offers a free consultation to discuss your situation and how we can help you obtain payment for your invoice.

 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

We Are Hiring | Articled Student for May 2018

Velletta & Company is currently seeking an articled student to start in the May 2018

Start Date:  May 2018

 

Information:

Velletta & Company is a full service law firm in Victoria BC with many practice areas including:

  • Business Law
  • Civil Litigation
  • Employment Law
  • Family Law
  • Plaintiff Personal Injury Law
  • Wills and Estates
  • Real Estate Law

We are looking for an articling student for the 2018/2019 year.

 

We offer a well-rounded articling experience, supportive work environment and competitive pay. We offer a competitive, challenging, and diverse articling experience to motivated students demonstrating academic achievement.

 

Please submit a cover letter, resume, law school transcripts and reference letters to the attention of

 

Firm Contact Information:

 

  1. Eric Pedersen

4th Floor – 931 Fort Street

Victoria, BC  V8V 3K3

www.victorialaw.ca

pedersen@victorialaw.ca

 

Applications will be accepted by email to the above address.  We are accepting applications immediately.

Termination during a Probationary Period

According to the BC Employment Standards Act, an employee who is terminated without cause is entitled to severance pay or a period of notice based on their years of service.  The Act specifically provides that Employees in their first three months of employment can be terminated with or without cause at any time, and without severance.  Most employers consider this to be a three month probation period during which the Employee’s suitability for continued employment will be assessed.

 

In addition, many employers will include a probationary period of a similar nature into a written employment contract.  Although such a provision will typically be enforceable, it will not give the employer carte blanche to fire at will.  The law in British Columbia has developed so as to place an obligation on the employer who terminates during a probation period to do so in good faith.  In the recent case of Ly v. British Columbia (Interior Health Authority), the BC Supreme Court set out requirements placed on an employer who chooses to terminate during a period of probation.  In tis case, the plaintiff was hired in a managerial role and was terminated after approximately two months of employment.  The court set out the following factors to be considered in determining whether the termination was made in good faith.

 

1)      whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment;

2)      whether the employer acted fairly and with reasonable diligence in assessing suitability;

3)      whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and

4)      whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability.

 

In this case, even though the employee was terminated during the probationary period, the court found that they were entitled to reasonable notice damages because the employer had not provided the employee with a fair opportunity to demonstrate their suitability.

 

Before terminating an employee during a probationary period, it is important that the employer turn their mind to the above principles, as failure to do so could result in a court award made against the employer.  Similarly, for employees, the mere fact that the termination took place during a probationary period will not necessarily bar a claim for reasonable notice damages.

Should you need any assistance with this area, or have further questions, please contact us. We are here to help you navigate tricky situations such as these ones and get you the best possible outcome.

Beneficiaries entitlement to financial information of an Estate

In most cases, when a person passes away they leave behind assets that form their estate. Usually, a personal representative (either an executor or trustee) is appointed to manage and distribute this estate. When receiving this role, the personal representative obtains a number of duties that they are legally required to follow. To acknowledge these duties they must swear in an affidavit that they will legally administer the deceased’s estate and be subject to these duties. This article will focus on the personal representative’s duty to account.

To account for an estate means providing information relating to two different stages, firstly about the status of the estate, and secondly about how the estate was administered and any work that was done. This information should include payments made by the estate and also any expenses and executor’s fees charged. A personal representative is required to retain detailed and accurate information of all transactions throughout their management of the contents of the estate. In some instances failing to keep accurate records can lead to the personal representative being held personally responsible for a transaction.

Specifically, there is a legal requirement that a personal representative must have their accounts approved by all beneficiaries or before a court every two years, unless it is otherwise agreed or ordered. The information that must be contained is:

  • a statement of the assets and liabilities of the estate;

 

  • a description of capital transactions, listed in chronological order;

 

  • a description of income transactions, listed in chronological order;

 

  • a statement showing the proposed fees that the executor or administrator is claiming for their work with respect to the estate; and

 

  • a statement setting out any past and proposed distributions of the estate.

Additionally, there is a common law duty to be ready at all times to provide information about the progress of the administration of the estate. Although the amount of detail under the common law duty varies based on a person’s interest in an estate, the amount of disclosure owed to a beneficiary is at the highest level. A beneficiary is permitted to inspect accounts, and other documents relating to the estate, at any point in time. Additionally, failing to account to a beneficiary after being requested to do so may result in the personal representative being ordered to pay costs of the beneficiary when the accounts are passed.

 

As you can see the duty to account is an important duty for beneficiaries and others to be aware of in the event that they are confused as to the estates financial management or its distribution. If you are a beneficiary and the personal representative is not providing you with an accounting or adequate information, it is important to consult with an estates lawyer. One of our experienced associates would be happy to provide you with the necessary advice and information to make the financial management or distribution process one that is stress-free and easy for you; all you have to do is contact us to book your first consultation.

 

 

Jade_Velletta_Company Jade grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.

VIDEO | Incorporation in Canada

I am Michael Velletta, a founding partner of Canadian law firm Velletta & Company. Why should you choose British Columbia as your place to incorporate? For those desiring to do business in Canada the obvious jurisdiction of choice is British Columbia.

 

British Columbia is an investor friendly environment and has the most contemporary business laws in Canada. Perhaps, even the most contemporary anywhere on the globe. These laws reduce bureaucracy and increase flexibility. An interesting feature of incorporating in British Columbia is that at the same time you incorporate in BC you can also incorporate into Alberta, which is the neighboring province.

 

In fact British Columbia companies can be extra-provincially registered in every jurisdiction in Canada and can be extra-territorially register in just about every jurisdiction around the globe. One advantage of being a British Columbia company is that you have access to the Canadian legal system which is considered extremely stable and is very well-respected. It also meshes well with all US jurisdictions, Australia, New Zealand, Great Britain and many other corporate business jurisdictions around the globe.

 

A BC incorporation also gives you great opportunities and exposure to Canadian capital markets with the Toronto Stock Exchange that Toronto Stock Exchange, Venture, which is the junior market, and the Canadian Stock Exchange. In addition, companies that are listed companies in Canada can at the same time use documents filed in Canada on inter-listed U.S. stock exchanges such as NASDAQ, the American Stock Exchange and the New York Stock Exchange.

 

Finally, the cost of doing business in Canada is much more attractive than most other jurisdictions. You might be surprised to learn that the tax regime in Canada is not very aggressive, and is in deed much more attractive than most U.S. jurisdictions.

 

Velletta & Company is adept at advising international clients on all corporate matters, and particularly creating your British Columbia Corporation. I hope that you will let Velletta & Company provide you with corporate advice and be a part of your team.

 

The British Columbia Franchises Act

For the first time in British Columbia franchises are now subject to legislation with the enactment of the new Franchises Act (the “Act”) which took effect as of February 1, 2017.

 

With the enactment of the Act, British Columbia is the sixth Canadian province with franchise legislation, joining Alberta, Manitoba, Ontario, New Brunswick and Prince Edward Island.

 

The B.C. Government recognizes that franchise purchasers are making a significant investment, however they can sometimes be at a disadvantage when solely relying on the information provided by the company offering the franchise, due to a lack of knowledge, experience, and access to expert advice. The Act helps to rectify this imbalance and support the expansion of franchises by standardizing regulatory requirements, while at the same time encouraging investment in B.C. Franchisors selling franchises in B.C. must now deliver a compliant disclosure document to prospective franchisees at least 14 days before the execution of a franchise agreement or the payment of any consideration in relation to the franchise. This disclosure includes (but in not limited to) a description of the business opportunity itself, a list of all fees and costs a franchisee must pay to acquire and operate the franchised business, details of any litigation involving the franchisor or its affiliates, a description of any territory granted, and a list of existing and former franchisees for prospects to contact for more information. Audited or reviewed financial statements must also be a part of the disclosure package, together with copies of all contracts the prospective franchisee is required to execute.

In addition, the Act imposes retroactive application for certain claims, including damage claims relating to breaches of the duty of fair dealing and the right to associate. This means, as of February 1, 2017, franchisees and franchisors are able to make claims for breaches of the duty of good faith and fair dealing in the performance and enforcement of franchise agreements entered into prior to February 1, 2017.

Below is a brief summary of the main provisions of the Act.

The Act:

Application – the Act applies to any franchise agreement entered into and to any renewal or extension of a franchise agreement that was entered into before, on or after the Act comes into force.

Fair Dealing – a duty of fair dealing, which includes acting in good faith and with reasonable commercial standards, is imposed on both the franchisor and the franchisee in the performance and enactment of a franchise agreement.

Right to Associate – a franchisee may associate with other franchisees and may form or join an organization of franchisees.

A franchisor and a franchisor’s associate must not, directly or indirectly, penalize, attempt to penalize or threaten to penalize a franchisee for associating with other franchisees, or for forming or joining an organization of franchisees.

Disclosure – a franchisor must provide a prospective franchisee with a disclosure document including financial and other relevant information about the franchise at least 14 days before the signing of the franchise agreement and the payment of any consideration.

Right of Rescission – conditions are set for the franchisee to rescind a franchise agreement upon a franchisor’s failure to provide satisfactory disclosure.

Damages – if the franchisee suffers a loss because of a misrepresentation in a disclosure document or in a statement of a material change, or as a result of a franchisor’s failure to comply with the provisions of the Act dealing with disclosure requirements in respect of material change, then the franchisee has a right of action against the franchisor, the franchisor’s broker, the franchisor’s associate and everyone who signed the disclosure document.

Attempt to Affect Jurisdiction Void – provides that a provision in the franchise agreement to restrict the application of the law of the province is void with respect to claims arising under a franchise document to which this Act will apply, including in respect of arbitration.

In conclusion, the Act is intended to benefit franchisors by continuing to establish uniform regulatory regimes across Canada and standardize franchise practices already followed by more sophisticated franchisors. Likewise, the Act will provide appropriate and needed legal protection to B.C. franchisees who are typically small business operators.

View the full text of the British Columbia Franch1ises Act.

 

Natalia M. Velletta is an Articled Student at Velletta & Company. Before pursuing her passion for law, Natalia attended the University of Victoria where she obtained her undergraduate degree in Education. Natalia also worked for the Government of British Columbia under the Superintendent of Motor Vehicles.

Settlement Conferences: Your Complete Guide

A settlement conference is a private hearing between the parties involved in a lawsuit, and a judge. At a settlement conference the judge presides over the conference, guiding settlement discussions between the two sides. As the costs of going to trial rise, settlement conferences have become an important part of civil litigation, that often allow the parties to resolve their dispute and avoid the costs and risks of a trial. Most importantly, a settlement conference is a discussion, and very little can happen at a settlement conference without consent of both parties. This means that the risk of a settlement conference is low, and the parties can focus on resolving their dispute. Discussions at a settlement conference are without prejudice, and cannot later be brought up in court if the case goes to trial.

 

Small Claims Court:

British Columbia Small Claims Court hears civil claims up to the amount of $35,000, with some exceptions. In a Small Claims case, both sides will file documents with the court called pleadings. The Claimant will file a Notice of Claim setting out their allegations, and the Defendant will file a Reply containing their response to the Plaintiff’s allegations. Once this happens, the parties will wait to receive a notice form the court registry notifying them of the date set for a settlement conference. In Small Claims Court a settlement conference is mandatory, and if you do not attend you may lose by default.

 

Supreme Court Settlement Conferences:

Cases that involve damages over $35,000, and cases specifically excluded from Small Claims Court, must be litigated in the British Columbia Supreme Court. Although settlement conferences are not mandatory in Supreme Court, it is still possible to have a settlement conference under certain circumstances.

 

Supreme Court Civil Rule 9-2 sets out when a settlement conference happens in Supreme Court. Both parties can agree to have one by filing a form, or a judge or master of the court can order that the parties attend a settlement conference. Like in Small Claims Court, the judge or master who presides over the settlement conference will help the parties to discuss settlement of their dispute. The judge or master who presides over the settlement conference will not preside over the trial unless all the parties consent.

 

What Happens at a Settlement Conference?

Each judge or master may conduct settlement conferences slightly different, but there are some common factors that you should know. Generally the judge will have read the pleadings and will know what the case is about. The parties may have a brief opportunity to set out their case, or the judge may launch right into asking questions of one or both parties regarding their case.

 

Ultimately the judge will try to start a discussion of settlement, often by asking the defendant if they are willing to make an offer to settle the case. Some judges weigh in on what they think are the merits of the case, or problems that they foresee with the case that would make it worthwhile to settle and avoid a trial. These judges may offer their opinion on the merits of the case so that the parties can make a more informed decision about whether they want to settle or go to trial. Other judges tend to focus less on the merits of the two parties’ respective cases, and more on getting a dialogue going between the parties. Either way, the goal is to see if the parties can agree on a settlement.

 

You will never have the same judge at a trial if the case ultimately goes to trial, because the settlement conference judge has heard the without prejudice discussion of the parties.

 

One thing to be prepared for is that you will likely be asked to compromise on your position. In our experience, settlement conferences are a pragmatic affair, where parties are discouraged from making a stand based on principals. Litigation to trial is expensive, in terms of costs if you have a lawyer, or in terms of time if you represent yourself. Going to trial is almost always a risky situation, despite how strong your case may be. There is always the possibility that the other side succeeds in convincing the judge. Parties are expected to take into account these costs and risks when discussing settlement, and usually judges will expect there to be movement on both sides.

 

You are perfectly entitled to stand on principal and refuse to compromise on your position at a settlement conference, but you should be prepared to defend that position if questioned on why you will not compromise. If you take this position, it’s probably more likely that your case will go to trial, because if you’ve ended up having to file a lawsuit, the other side is unlikely to suddenly change their tune and completely accede to your position.

 

In Small Claims, if the parties cannot reach an agreement, the judge often switches over to making administrative orders about the future trial and what must happen before trial. Usually these orders will include an order that the parties exchange document disclosure a certain number of days before trial. The judge may also ask you how many witnesses you intend to have testify at the trial. The judge will determine how much time is needed for the trial, which is very important. You should be prepared for these questions in case the trial does not settle, so that you can deal with any administrative matters while you are before the judge, and get clear orders about how to prepare for trial.

 

Why are Settlement Conferences Useful?

 

A surprising number of cases settle at the settlement conference or shortly thereafter. Having both parties in the same room, before an experienced and impartial individual, is an excellent opportunity to resolve the case. Things can move much more quickly when compared with sending written settlement offers back and forth. Perhaps most importantly, a settlement conference gives you a sneak peek at how the other side will appear at trial. You may hear about their case and learn why they think they will win at trial. This can be especially helpful if the other side’s pleadings are less than clear in setting out their position.

 

At a minimum, even if the case does not resolve, you will likely walk away from the settlement conference with a better idea of the other side’s case, which will enable you to better prepare for trial. You will likely know how they articulate their case in their own words, how well they present themselves before a judge, what witnesses they intend to call, and how much time they think the trial will take. All of this information will help you avoid being surprised at the trial, and will give valuable insight into how you should plan your own case to overcome the position of the other side.

 

Strong Negotiating Skills

Settlement conferences come down to negotiation. You will have a certain amount of leverage going into a settlement conference, depending upon how strong your case is. What you do with that leverage is up to you. Generally your goal is to maximize the amount that you recover, and to do this you need to highlight the strength of your case to the judge and the other side, increasing your leverage, and hopefully getting a better settlement offer out of the opposing party. At Velletta & Company we pride ourselves on being strong litigators, who understand both the benefits of negotiating a fair resolution, and the strategic value that can be taken away from a negotiation, even if you cannot reach an agreement. If you are facing an upcoming settlement conference, please feel free to contact us for a consultation.

 

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