You can call the plaintiff directly and offer a settlement or you can instruct your attorney to offer a settlement to the other attorney. Settlement can be offered under CCP 998 as a cost shifting mechanism if plaintiff does not accept it.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.
You can settled the lawsuit out of court but it is not advisable because the settlement agreement should contain language that dismisses the case with prejudice and waives
all other rights of Plaintiff. The best course of action is to send your attorney a letter stating
you want to settle the case immediately. Wait five days and go in to see the attorney. If the attorney refuses you can fire the attorney and demand your money back. Also, ask why he is dragging out the case.
You should not contact the other side for any reason without first consulting with your lawyer. Some cases have restrictions against one party contacting a represented party, such as debt collectors may not contact a represented consumer. There are many other instances where it would seem improper and if the case does not settle, it is possible you will say things that can come back later and hurt your case.
If you feel the case is dragging, discuss with your lawyer making a settlement offer. If you feel the lawyer is doing a very bad job and you feel he or she will not be a good negotiator, it is time to switch lawyers. Perhaps there is someone else in the same law firm that can work with you, if it is just personality. Perhaps your lawyer also feels there should be more progress. Sometimes making an appointment for a meeting is very productive, or at least a phone call with your cards on the table.
If you feel the answers from the lawyer are incorrect, it may then be time to consult with a new lawyer and get their views to see if they can take over or if your current lawyer is doing the best with what the case is. Some cases just drag for a long time, it is not any lawyer's fault.
Is your lawyer hired by an insurance company? If so it may be advisable to hire your own attorney in your State to attempt a settlement and/or to protect your personal assets if a judgement is entered against you that exceeds your insurance coverage.
Rules that restrict communications with parties who are represented by counsel generally apply to the lawyers only, not to the parties themselves. Rules restricting what debt collectors can say apply to debt collectors, not to the defendants in a lawsuit. There should be no restrictions on your calling the other side directly and discussing settlement with them. You should make sure, however, that the other party agrees and understands that your discussion with them is a settlement discussion and is confidential. If you are not successful in settling the case, you do not want the other side quoting (or mis-quoting) something you may have said to them.
(But I am not your attorney, and therefore you should not hold me responsible for any advice. In fact, what I am telling you is not legal advice. When I do represent parties in litigation, however, which I do all the time, I would never tell them that they are not allowed to call the other side directly. In fact, I generally encourage those kinds of communications, but I do sometimes tell clients to be careful about what they say!)