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Small Claims Court Settlement Conferences - What to expect?

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I am an articling student who has my first settlement conference coming up for a small claims court matter. I've had the opportunity to lead a few trials and have attended mediation before, but have never attended a settlement conference. I'm quite familiar with the details of the case and my client's position, but apart from that, I kind of feel like I'm just prepping for a trial - I'm looking for some information on what to expect and tips on how to be well prepared. 

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settlement conference is basically just meet in a room and chat. sometimes you won't even get to speak as the judge will only want to hear from the client

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Know your case and be prepared. The settlement conference is the lowest pressure of anything, but you still want to make a good impression (even though the Deputy Judge isn't supposed to be the judge at trial, he may still hear motions on the matter down the road).

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Be prepared for the fact that the judge will try to drive a settlement if it's at all possible. Might be good or bad for you, depending. But it's at least something to prepare your client for. And it does serve a good purpose.

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5 hours ago, ghoulzrulez said:

I am an articling student who has my first settlement conference coming up for a small claims court matter. I've had the opportunity to lead a few trials and have attended mediation before, but have never attended a settlement conference. I'm quite familiar with the details of the case and my client's position, but apart from that, I kind of feel like I'm just prepping for a trial - I'm looking for some information on what to expect and tips on how to be well prepared. 

What Douglas said. If you can run a trial, settlement conference is a joke. It’s just another form of a mediation but in front of a judge. He/She will give their opinion on both sides, there will probably be some egos being swung around and away you go. As long as you’re very familiar with the facts of your case and your client’s bottom line and BATNA you’ll be ok. Also be ready to throw in a Rule 49 at some point. Good luck!

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If your client is being strong armed into an agreement you know they will regret and blame you for, just ask to take 5 and step outside and remind your client it’s their choice to agree. This will help avoid complaints later on. 

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1 hour ago, TrialPrep said:

If your client is being strong armed into an agreement you know they will regret and blame you for, just ask to take 5 and step outside and remind your client it’s their choice to agree. This will help avoid complaints later on. 

There is a lot of last-minute deal-making in crim. Ideally, we get written instructions signed by the client (you can do it on a notepad or whatever) and have a witness there - a student, a colleague we grab in the hallway - and take notes and do a file memo. 

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On 12/6/2018 at 11:39 PM, Mycousinsteve said:

What Douglas said. If you can run a trial, settlement conference is a joke. It’s just another form of a mediation but in front of a judge. He/She will give their opinion on both sides, there will probably be some egos being swung around and away you go. As long as you’re very familiar with the facts of your case and your client’s bottom line and BATNA you’ll be ok. Also be ready to throw in a Rule 49 at some point. Good luck!

Small Claims Court only has 22 rules. :)

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On 12/9/2018 at 4:38 PM, providence said:

There is a lot of last-minute deal-making in crim. Ideally, we get written instructions signed by the client (you can do it on a notepad or whatever) and have a witness there - a student, a colleague we grab in the hallway - and take notes and do a file memo. 

In Small Claims it is a requirement that all of the parties be present at the settlement conference. A rep can not accept a settlement on behalf of a client. 

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Think about what orders you want the Deputy Judge to make if you don't settle (whether you're angling to settle later or to go to trial).  E.g., other side must produce X, Y and Z within 30 days. By getting these orders now, you may avoid the hassle of future motions/attendances.

Edited by Kip
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Sometimes there is a Deputy Judge sometimes it is a mediator, although recently I haven't seen the mediator it's just been a Deputy Judge.

Prep the client advise them that the Rules push us towards settling and the Deputy Judge might just give out random figure but that let them know that is the point of this whole thing.  Let them know that the Deputy Judge might not ask them any question and might as them all the questions.  In saying this in some cases your client wont be there it depends on jurisdictions and if you have good instructions.

Know your case and be prepped for questions. 

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I think it really helps to have the 'cost and risk' of going to trial talk with the client before these conferences. There's a reason that the rules and process generally is so slanted towards forcing settlement, and its because small claims trials rarely make any financial sense. 

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It's worth it to make the pitch but be prepared for the matter to primarily be about how many witnesses, how long your case will be, what kind of documentary production do you need, and so on. I've very rarely seen small claims matters settle at the settlement conference if it is between individuals. A bank or credit card company is more willing to take a cheque for half. A guy who lent his brother $20,000 would choke on an offer of $10,000. So it depends who the clients are. 

Paradoxically small claims matters are harder if you are outside of downtown because the middle class guys who lent their brother $20,000 don't go downtown while institutional clients are more likely to hire one of the big firms for collections work even if its comparatively small collections.

Small claims trials can not make sense but on the other hand taking a lowball offer is worse than making it economical for the client to proceed. Generally that means putting a student or junior on the file or giving him memos and argument instead of actually attending the trial.

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When I was at a big firm, I did a few small claims trials where the plaintiff was being ridiculous. If it's one of those files, all you can achieve at the settlement conference is a document production order.

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On 12/6/2018 at 6:27 PM, ghoulzrulez said:

I am an articling student who has my first settlement conference coming up for a small claims court matter. I've had the opportunity to lead a few trials and have attended mediation before, but have never attended a settlement conference. I'm quite familiar with the details of the case and my client's position, but apart from that, I kind of feel like I'm just prepping for a trial - I'm looking for some information on what to expect and tips on how to be well prepared. 

If the defendant offers $0, show this case to the deputy judge:  https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc4151/2019onsc4151.html

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On 12/11/2018 at 10:31 AM, Kip said:

Think about what orders you want the Deputy Judge to make if you don't settle (whether you're angling to settle later or to go to trial).  E.g., other side must produce X, Y and Z within 30 days. By getting these orders now, you may avoid the hassle of future motions/attendances.

Yeah this is what I was gonna say. Prepare your client with a settlement strategy and your main submissions in support of the amounts you’re offering (or asking for), but the main goal should be to not leave empty-handed. Your client will appreciate your efforts if you don’t settle but get one or more Orders that will speed up the process and get them what they need to make a better-informed decision. 

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8 hours ago, utmguy said:

If the defendant offers $0, show this case to the deputy judge:  https://www.canlii.org/en/on/onscdc/doc/2019/2019onsc4151/2019onsc4151.html

Wait - the judge ordered $500 in costs because defence wouldn't make a settlement offer?  That's insane.

I have a soft spot in my heart for small claims court, because being given some small claims cases in articling is what awakened my desire for litigation in the first place.  I am reminded of a case I ran: as defence we immediately identified we had some small degree of liability, but the self-rep plaintiff insisted on damages well in excess of what we thought would be appropriate.  We made a formal offer to settle (and I had to twist my client's arm to make it much larger than we thought would be awarded, though less than what plaintiff was asking for).  Matter went to trial, and sure enough self-rep plaintiff was successful: and awarded substantially less than our offer.  As defence we then requested costs - which were well in excess of the damages awarded.

Judge looked frustrated that we would ask for costs at all (hadn't we just "lost"?), and gave us costs of $50.

Self-rep promptly appealed, and at this point the client just paid the entire amount being requested (well in excess of what the trial judge thought appropriate) just to avoid the ever-increasing legal costs.

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