Parties and lawyers should consider high-level agreements when balancing their options in their cases; There are many situations in which these agreements may be desirable. Moreover, it is encouraging for those who recognize the different benefits of jury trials to see that there is evidence that low-cost agreements actually favour jury trials. As we try to avoid the extinction of the jury, the promotion of the use of high-level agreements may well be a step in the right direction. In our November 2019 newsletter, an article by Justice Clare E. McWilliams, Illinois Circuit Judge, in which she discussed very low agreements – agreements that set minimum and maximum amounts, thus providing insurance to parties going to court. If the dollar amount of the judgment rendered is between the maximum amounts and the agreed minimum amounts, the plaintiff receives the sum of the dollar of the jury`s award. However, if the judgment is less than the minimum (or a non-responsibility judgment), the plaintiff receives the agreed minimum and if the judgment is for an amount greater than the maximum amount, then the applicant receives the agreed maximum. In her article, Justice McWilliams laid out the basics of how high-level agreements work, and she also discussed some of the issues to be considered in their use. Before they enter into a high-risk agreement in a legal action, the lawyer should inform the court and all non-consensual defendants. The New York Court of Appeals ruled that the parties must disclose the existence and terms of the agreement to the court and to all non-consensual defendants when a plaintiff and a defendant enter into a maximum-low agreement in a multi-accused lawsuit and the favorable defendant remains partisan. In the Matter of Eighth Judicial District Asbestos Litigation (Reynolds v. Amchem Products Inc.), 8 N.Y.3d 717, 872 N.E.2d 232, 840 N.Y.S.2d 546 (2007).
In this case, these were lawsuits against various producers and distributors of products purportedly containing asbestos. The applicant stated that he had undergone mesothelioma as a result of his exposure to asbestos in the refinery. Prior to the trial, the complainant settled his accounts with all but two of the accused: Garlock Sealing Technologies LLC and Niagara Insulations, Inc. While high-level agreements are acceptable in all cases, special caution should be exercised with regard to minors. For example, in the case study above, although the parents are involved in the lawsuit and approve the low-cost agreement, with the plaintiffs` counsel, the agreement should obtain judicial authorization to prevent the annulment. The judge appointed a Guardian ad Litem that approved or rejected the agreement. If approved, all parties are assured that the transaction will be binding.