Courts Assist Parties in Settlement of Law Cases

Alternative Dispute Resolution

Fairfax Neutral Case Evaluation Program Going Strong

The Fairfax County Circuit Court, with the support and assistance of the Fairfax Bar Association, implemented the Court's Neutral Case Evaluation (NCE) Program in 1993. The NCE program enlists the experience of senior level attorneys who serve the court on a volunteer basis as neutral evaluators in settlement conferences for personal injury, contract, and medical malpractice cases. The program, begun as a pilot in May 1993, was developed by the court's Alternative Dispute Resolution Subcommittee and was based largely on the Court's success at their 1st Annual Settlement Day held in the Spring of 1992. In its many years of existence, it has proven effective in resolving cases earlier in the process and at a decreased cost to both the court and litigants.

The NCE program works in conjunction with the court's Differentiated Case Tracking Program (DCTP). Upon filing of a civil case, DCTP sets the case for a scheduling conference. Prior to the scheduling conference, a judge determines if the case should have a settlement conference and whether the settlement should be with a judge or with an NCE evaluator. At the scheduling conference, the court also determines if a settlement conference would be beneficial. Many attorneys now specifically request a settlement conference. Cases involving Pro Se parties may not be scheduled for settlement conferences.

The Court has established criteria for determining when NCE is appropriate. Personal injury cases sent to NCE may include the following factors: (1) the medical treatment has been, or will be completed prior to the trial date; (2) the likely award for damages is out of proportion with the anticipated cost of full trial on all issues; and (3) there is a possibility of adverse publicity. Identical criteria are used for contract cases with liquidated damages, with the exception of completion of medical treatment being an issue. Cases scheduled for settlement that contain the following: (1) liability is a significant issue; (2) a novel issue of law is involved, or (3) there is a antagonistic relationship between the parties, are scheduled for settlement with a judge.

NCE settlement conferences are held approximately 4-6 weeks prior to the trial. This provides sufficient time for further settlement discussions between the parties and possible follow-up discussions with the evaluator. Often, parties may come to a settlement conference with only a hint of where the case stands. In such instances, evaluators can provide an honest evaluation of the case's worth and an estimate of what a jury award may be. Evaluators bring with them substantial experience and often correct the misconceptions the parties may have concerning the value of the case, and persuade them of the advantage of settlement, particularly the reduced risk, they face. For many litigants, it provides a significant amount of time for communicating with the opposing party without the formalities of court procedures, witnesses, and a jury. This can be crucial to settlement, and it significantly contributes to the parties view that they received a fair settlement, and thus fair and just treatment by the court.

The Fairfax Bar Association's involvement has been a critical part of the program's success. Currently, 66 senior level attorneys serve pro bono as evaluators for the program. Evaluators are required to spend an hour per evaluation, but often spend 1 to 4 hours per case as they may be involved in follow-up discussions. Unlike other programs, the evaluators are not paid for services. That so many high level attorneys volunteer their time is a real tribute to the Bar and its dedication to keeping the costs of litigation reasonable. The Bar's service in this program results in an invaluable conservation of court time and judicial resources.

Participants in settlement conferences must make a good faith effort to settle the case at NCE. Attorneys must come to the settlement conference with full authority to settle the case. In addition, participants are required to file with the court a confidential settlement statement 5 business days prior to the settlement conference. The Neutral Case Evaluator may also request that the confidential settlement statement along with any additional materials be provided to the Neutral Case Evaluator prior to the conference.

The NCE program has proven to be effective in increasing the number of cases that settle early (at or before settlement) and decreasing the trial rate for personal injury, contract and medical malpractice cases. In addition, surveys conducted of participants at NCE settlement conferences show a high level of satisfaction and support for the program.

NCE Law Confidential Settlement Statement and Instructions (PDF)