How do I make sure a waiver of costs and malicious prosecution is valid?

I'm about to dismiss a defendant in a civil unlimited case. His laywer that has been particularly hard to work with. (I dealt with the lawyer of another defendant so I have a basis for comparison). It has gotten to the point I don't trust that lawyer anymore. AFter a long delay, the lawyer has sent me an email stating their client has agreed to "waive costs and malicious prosecution" (doesn't even say "action"). Is that sufficient? Seems like I would need something a little more official. Are there any rules about what info should be on it? specific wording? format? means of communication (i.e. is email just as acceptable as U.S. mail? etc) Anything else I shoudl keep in mind before I grant this dismissal?

Los Angeles, CA -

Attorney Answers (5)

Michael Raymond Daymude

Michael Raymond Daymude

Litigation Lawyer - Sherman Oaks, CA
Answered

If you do not want the dismissal to come back to bite -- you want to enter into a mutual settlement agreement and release which releases all known and unknown claims between the parties for a dismissal of the pending action with prejudice.

The email you mention is insufficient. You need to have an attorney draft such an agreement for you or at least review the proposed agreement drafted by opposing counsel.

A typical agreement identifies the case, parties, and claims of each party, includes terms regarding costs and attorney’s fees, statutory language regarding unknown claims, terms of settlement, and contains other necessary boilerplate. Good luck.

I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
Frank Wei-Hong Chen

Frank Wei-Hong Chen

Litigation Lawyer - San Marino, CA
Answered

If you are going to dismiss that defendant with a waiver of costs and with a waiver of any potential claim for malicious prosecution, you need to the defendant and the defendant's attorney to sign a simple written settlement agreement containing the requisite release language. Just receiving the attorney's email is not sufficient.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more
Jeffrey Bruce Gold

Jeffrey Bruce Gold

Lawsuit / Dispute Attorney - Bellmore, NY
Answered

If you'd like to make sure that its done correctly, you could hire an attorney for the limited purpose of reviewing your documents. Otherwise, you might check with a local law school to see if they have a clinic program which can help you.

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore,... more
James Carl Eschen III

James Carl Eschen III

Litigation Lawyer - Santa Cruz, CA
Answered

I think actually that if you sent an email back saying "ok" and dismissed the action, you would probably have an enforceable agreement to release of any liability for malicious prosecution.

But "probably" could end up costing you a lot of money. As my colleagues have advised, a formal agreement would make it clear.

Robert Bruce Kopelson

Robert Bruce Kopelson

Personal Injury Lawyer - San Jose, CA
Answered

In addition, the dismissal form should include the notation that" defendant is to bear his own costs and fees. "

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