The Trial Lawyers section of the Florida Bar tried to devise a way to keep settlements from getting slowed to the point of failure by devising a solution to the common pitfall at the end of a case: the development of a Model Release.

Many times cases get hung up on issues that must be resolved before any settlement can be considered final, and those issues are frequently either not addressed, as the parties consider the monetary issues more important. However, it is the duty of the counsel on both sides to take these issues that might seem to be “loose ends” and tie them down to get a matter fully concluded.

The proposed Release provisions can be found at flatls.org. It offers different passages that might be applicable in different types of cases, depending upon any particular factual situation, to assist in resolution. However, as with all forms of this type, the user should be reminded that these are merely forms to be used as a guideline for the creation of a more comprehensive, final form Release that is tailored to the particular case and its relevant details. The forms on the site can be downloaded in many formats, including Adobe Acrobat, Word and WordPerfect.

The Model Release is broken down into readily usable segments, such as attorney fee claims, dismissals, and indemnity provisions. It is useful in application and in the abstract, since it reveals some of the potential aspects that should be considered when settling any particular case. This standard was a bit ambiguous and uneven, due to the “lack of justiciable issue” element of the test. Recently, however, the statute was amended to provide a more clear set of standards, namely, to permit fee recovery if at any time during a civil proceeding or action the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense was not supported by the material facts necessary to establish the claim or defense; or was not supported by the application of then-existing law to those material facts. The standard is now not only more clear, but the threshold has been lowered for those seeking to use this provision to recover fees incurred under such circumstances. Thus, while the goal is to eliminate bogus claims and defenses and permit a quicker resolution to cases, it should now be easier to convince a court of one’s entitlement to the recovery of fees under the revised statute.

For more information on this topic, please contact James Carpenter at:jwc@www.angelolaw.com.