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Reaching Settlement With One Defendant During Litigation

In many civil cases, a plaintiff may sue more than one person responsible for his or her injury. Furthermore, throughout the litigation the plaintiff may reach a settlement with certain defendants, but not others. In these instances, defendants can turn into trial witnesses.

For personal injury lawyers, this poses the issue of what potential prejudicial impact the settlement may have on a jury, should the jury ever learn of a settlement between the trial witness and the plaintiff. The fear for trial lawyers is that the settlement is easy cross examination material for the remaining defendants, as the jury could be poisoned should the defense attempt to show bias or prejudice.

Thankfully, Florida Statute 768.041(3) titled “Release or covenant not to sue” addresses the proper procedure. F.S. 768.041(3) provides “The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.”

In a recent case from the 3rd DCA F.S. 768.041(3) this very issue was addressed. In the Bern v. Camejo case defense counsel at trial elicited testimony and argued to the jury that one of the trial witnesses had initially been sued as a defendant and since had been dismissed from the case. Camejo, So.3d, 39 FLW D94 (Fla. 3rd DCA 1-8-2014). In the Camejo case the defense attorney went on to advise the jury that the plaintiff, before the settlement, had alleged in her complaint that the former defendant was negligent and responsible for the car accident.

On appeal, the Third District Court of Appeal ordered a new trial by holding that the defense attorney’s statements were improper and violated the statute because it logically and reasonably led the jury to conclude the plaintiff has settled her claim against the former defendant prior to the trial. As such the statements violated F.S. 768.041(3). Camejo, So.3d, 39 FLW D94 (Fla. 3rd DCA 1-8-2014)

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