Who should suffer the consequences when everybody drops the ball? I submit that the only solution is a “do-over,” i.e. doing the trial again. There’s no reason to punish the plaintiff more than the defendant for a settlement they both failed to memorialize before dismissing their jury.

I had this question, too. The article doesn’t really spell it out, but the client appears to have his mother and another person overseeing the settlement, as he names them as people who could accept the settlement for him. Not sure what California law calls for in a case like this – I’m sure some states might require court approval of a settlement where one party is not mentally competent, the appointment of a guardian ad litem, etc.

The settlement has to hold, otherwise lesson one in torts class would be to accept a settlement just before a jury verdict without permission from your client and void the settlement if the jury verdict is better.

If the client was brain damaged could he give informed consent to anything at all?

I don’t think the defendant should ever have to take the $9 million verdict, anyway. They were told they had a settlement. It is not the defendant’s job to find out if the lawyer has authority because it is presumed.

It sounds like the guy is a great lawyer. He could have made a mistake in the heat of battle. Jury is coming back; he has to make a call in real time under a lot of pressure. I wouldn’t hang him for it (although, either way, he is facing a pretty slam dunk legal malpractice case if he does not pop the new trial). But I think a settlement should be a settlement.

What the defendant should do if they really wanted to get revenge is settled the case for the $1.2 they wanted and leave the guy on the hook for the malpractice case for the rest. But, again, there really is no evidence here that this guy did anything other than make a mistake under pressure. That is malpractice but no crime against the people.

Was the jury dismissed prior to the settlement being entered into the record? I’m trying to understand the timeline from the linked articles, but it doesn’t make sense.

Mader v. United States, 2008 WL 5111047 (D. Neb. Dec. 2, 2008), rev’d., 619 F.3d 996 (8th Cir. Aug 31, 2010) (split panel), reh. and reh., en banc, den. (Nov. 12, 2010), reh., en banc, granted, opin. vac., (Dec. 14, 2010), new opinion, 654 F.3d 794 (Sept. 7, 2011) (en banc).

In Mader, decedent died on August 3, 2004. On August 3, 2006, the two-year anniversary of Mr. Mader’s death, the widow (Mrs. Mader)’s attorney signed and mailed a Standard Form 95, claims form, to the Veterans Administration, asserting a claim on behalf of the Estate under the Federal Tort Claims Act. No proof of Mrs. Mader’s authority as the Estate’s personal representative was submitted. On August 21, 2006 the VA’s Claims Counsel, sent Mrs. Mader’s lawyer a letter which, inter alia, requested evidence of Mrs. Mader’s status as personal representative. Neither Mrs. Mader nor her attorney responded. The VA’s Claims Counsel later telephoned Mrs. Mader’s counsel at least four times asking for the information, but, neither Mrs. Mader nor her lawyer replied. On September 19, 2007, the VA denied the claim in writing. In March 2008, Mrs. Mader, again claiming to be the Estate’s personal representative and purportedly acting on behalf of statutory beneficiaries, filed a wrongful death action against the United States under the FTCA. Id., 654 F.3d at 798 – 99. The court, sitting en banc, aptly summarized the effects of this course of conduct:

“Thus, after five years of consideration at the administrative, trial and appellate court levels, it has only recently become clear that Ms. Mader lacked the requisite authority to file a claim with the VA or to file a wrongful death action against the United States in federal district court. This critical fact was concealed due to Ms. Mader’s repeated refusal to disclose evidence of her status as personal representative to the VA.”

(ftn. omitted). Id., 654 F.3d at 802.

[As far as I am aware, neither the plaintiff nor the attorney were sanctioned.]

But I don’t understand why someone would call the verdict in this case irrational. We have zero evidence. My guess is the guy had millions of dollars in past and future medical expenses and other economic damages.