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Settlement during litigation.

San Diego, CA |

If the opposing party makes a settlement proposal, it isn’t final until its final, right? I’m in discovery and the defendant’s attorney is trying to make me settlement offer but as far as the litigation were also close to the end of an extension to the 45 day limit I have to file a motion to compel further responses from them. If I do settle in the next few days I have no guarantee it’s a bluff, they back out for some reason, and then I miss the 45 day limit to file to compel further responses. How can I lock in any settlement before we finalize the paperwork and litigation is pending?

Attorney Answers 7


  1. Best answer

    If the opposing party makes an offer of settlement and you expressly indicate your acceptance, the settlement is binding and the underlying claims are resolved. Any further litigation would revolve around enforcement of the settlement agreement.


  2. Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

    You are correct. It will be best to have the settlement in writing, signed by all parties and approved by their attorneys' of record, before you stop the litigation process. Be sure to consult your own attorney to protect your legal rights.


  3. You can negotiate an extension of time to file your Motion To Compel, pending receipt of a valid settlement check. This will effectively put that motion on hold to see if they are bluffing or not. Good luck.

    I am licensed in California only and my answers on Avvo assume California law. The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.


  4. Sounds like you are represented and you should talk to your attorney about this issue? I would agree with the other counsel. You can advise the court of the tentative settlement and they will put the case on the settlement calendar. A settlement is not binding until it is signed by all the parties or all parties agree to the material terms on the record. Make sure the settlement agreement contains all the material terms, amount to be paid; and by what date if possible, a civil code 1542 waiver of all known and unknown injuries, etc. I you discover additional injury after the settlement, you will not be able to recover for that if it arose out of the same incident!

    Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.


  5. I've dealt with similar cases before. You can request that the other side confirm in writing an extension for your motion to compel deadline.


  6. Make the opposing side sign a stipulation/agreement to toll or extend the 45 day deadline until the settlement agreement is finalized.

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  7. I agree generally with the above responses. Note however that in some jurisdictions the Court needs to approve extensions that would result in altering a previously-entered order (such as a scheduling order) and is not required to honor extensions of deadlines that it has not approved.

    This answer is provided for informational purposes only and does not constitute legal advice. I am licensed to practice law in the State of Delaware and this answer assumes Delaware law applies to the question unless otherwise stated. Unless and until we enter into a formal written engagement agreement, neither Berger Harris, LLC nor any of its attorneys represent you or have any duties toward you. This information is not intended to create, and receipt or review of it does not constitute, a lawyer-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us. In some jurisdictions, this World Wide Web site may be considered advertising. Before making your choice of attorney, you should give this matter careful thought. The selection of a lawyer is an important decision that should not be based solely upon written information about our qualifications and experience. Berger Harris, LLC has endeavored to comply with all known legal and ethical requirements in providing the information found on this website. Berger Harris, LLC does not desire to represent clients based upon their review of any portions of this website that do not comply with legal or ethical requirements in their jurisdictions.

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