Terms that need careful reading
Confidentiality clauses, non-disparagement language, and releases deserve as much attention as the payment. New York restricts nondisclosure terms in some settlements involving harassment or discrimination, and federal law limits enforcement of nondisclosure agreements signed before a sexual assault or harassment dispute arose; whether either rule reaches a given agreement depends on the claim. A release may cover more people or more conduct than you expect. Tax treatment can depend on how a payment is characterized, and programs such as Medicare or Medicaid, or some employer health plans, may assert liens against a recovery. A proposed settlement should be reviewed as a whole before anyone signs it.
Settlement and a criminal case
A civil settlement does not end a criminal prosecution. The decision to prosecute belongs to the government, and an agreement that tried to keep someone from reporting, cooperating with prosecutors, or testifying would be improper and could itself be a crime. Any discussion of payment should happen between lawyers and in writing, never through direct contact between the people involved. When a criminal case is pending, the timing of a civil resolution raises questions on both sides, including what statements are made and how they might be used. This is an area where civil and criminal counsel usually need to coordinate.
How we approach the discussion
We start with what you want the outcome to accomplish, which may include acknowledgment, policy changes at an institution, or privacy, as well as compensation. We review the evidence, the defendants' insurance, and the costs and risks of continuing, and we tell you what we know and what remains uncertain. No one can tell you what a fair figure is without that review, and you should be wary of anyone who does. You decide whether to accept, counter, or keep going, and you can take time to consider an offer before responding. If an offer arrives with a deadline attached, tell us right away so the response can be planned rather than rushed.
