Make first settlement offer or not?
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Make first settlement offer or not?
Posted by CharleyLake on 1/27 at 4:03 pm
Recently I,the plaintiff, had a meeting with the attorney that represents several people in a non-insurance related civil matter. The defendant wished to settle the matter and wanted me to make an offer to avoid litigation. I have no sense real value of a settlement and there are some non-monetary issues so I asked that the attorney request the defendant make the initial offer. Is there pros and cons of a first offer of a negotiation to settle an out of court issue?


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Posted by rmc on 1/27 at 4:31 pm to CharleyLake
One con is that if you make the first offer, you are setting the max as a plaintiff when the other side may have thought their liability was much higher.


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Posted by Athanatos on 1/27 at 6:14 pm to CharleyLake
What kind of contract do you have with your attorney: contingency or hourly billing?

It changes the analysis IMO



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Posted by Motorboat on 1/28 at 6:16 am to CharleyLake
Typically the plaintiff makes the first demand.


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Posted by CharleyLake on 1/28 at 8:09 am to Athanatos
Contingency


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Posted by CharleyLake on 1/28 at 8:23 am to Motorboat
I was told after the meeting that the plaintiff typically makes the first demand. I did not wish to set the standard unreasonably low and I did not make the suggestion of a settlement therefore at the time I thought the defendant should make an initial offer.


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Posted by Ric Flair on 1/28 at 9:51 am to CharleyLake
If this is re: the pipeline across your property?

I'd probably ask an unreasonably high amount initially, that way you know they won't accept your first offer, and the ball is in their court regarding an offer--negotiate up from there.



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Posted by bradwieser on 1/28 at 11:06 am to CharleyLake
Negotiation 101:

1. He who talks first loses. Never be the first to throw out a number



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Posted by CharleyLake on 1/28 at 6:16 pm to Ric Flair
Ric, It is and I will follow your guidance unless thier initial offer if they opt to make one is so low it will be considered bad faith. Some of joint owners would seemingly prefer to forego some monetary consideration for being treated unfairly and would welcome litigation. I was asked to participate because I am local. My share is not that great and I simply wish to contribute. Appreciate your comment.


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Posted by matthew25 on 1/28 at 9:23 pm to CharleyLake
If they don't make the first offer, then the first time they will see your offer is in your court filing, and it will be large.


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Posted by Mung on 1/29 at 5:18 am to CharleyLake
For a pipeline servitude, seems like full value for the land used, plus loss in value to the remainder would be fair. If you don't want to get an appraiser, just ask full value for the entire tract. Ultimately you have to consider what you could get at trial, and the cost it would take to get there.


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Posted by CharleyLake on 1/29 at 5:44 am to Mung
The pipeline was constructed with a ROW ageeement so bad faith trespass as it was presented to me would not be difficult to prove. The weakness of our situation is that it can be expropriated. Thanks.


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Posted by Mung on 1/29 at 9:11 am to CharleyLake
guessing you mean without a ROW agreement? They just built in the wrong place? Or thought they had the correct landowner's permission and didn't?

I see the extortionate value, the cost to force them to move it, but ultimately the land is only worth what it is worth. How did the "bad faith trespass" harm you? If it's outdoor property used for hunting, they created a nice shooting lane for you. Then again, I do insurance defense work, so I'm more conservative than your creative plaintiff lawyer types. Let them get an appraiser and he can give you a value. If you do not like it, hire your own appraiser. The legal profession needs the work.



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Posted by Bear Is Dead on 1/29 at 10:12 am to CharleyLake
2 key things IMO to point out:
1. If you get an appraisal,it needs to be sales comps of pipeline ROWs, not price per acre of the land. There is a recent case where this very issue was argued.
2.
quote:

The weakness of our situation is that it can be expropriated
This is true. However, there is a statute that states if the landowner's eventual award from judge/jury is more than the highest offer by the expropriator, you can receive all atty fees and costs of bringing it to trial. So its not quite as big of a deal to go to court if you feel confident about your demand compared to their offer.



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Posted by Motorboat on 1/29 at 10:36 am to bradwieser
quote:

Negotiation 101:

1. He who talks first loses. Never be the first to throw out a number


You obviously negotiate very little.



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Posted by matthew25 on 1/29 at 10:51 am to Motorboat
"Seven Strategies for Negotiating Success" by Max Messmer (Journal of Accountancy, 2006) states that you want the other side to give the first number. Principle applies to buying a car, house, job offer, any type of negotiation.


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Posted by matthew25 on 1/29 at 10:55 am to matthew25
I agree with Mung. Looks like a battle of appraisers. Make sure your side knows the prior court rulings in your area.


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Posted by CharleyLake on 1/29 at 2:31 pm to Mung
Mung, yes I did men no agreement. The defendant has not admitted error as of yet but I suspect faulty title work. We think that it was constructed about five or six years ago and the company has received and retained profits from the chemical that it transports. Other pipelines are in that corridor so we know roddage value. The only possible use for that land is for a billboard because it is Interste 10.


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Posted by Mung on 1/29 at 3:34 pm to CharleyLake
Gotcha, when lots of Oil & Gas or pipeline work is going on, sometimes they hire some sketchy abstracters. More than the established guys can handle sometimes.

My dad has some similar property near the Gonzales exit, behind the outlet mall. It is pretty worthless, other than for timber and the Lamar Billboard on it. I scouted it for hunting and gave up after walking in about 50 yds. You might look into an realtor/appraiser, as those guys can come up with super high valuations based upon the commercial value. Who knows, that may be the site of the next Super-Walmarks?

No insult intended, but if you didn't notice it for 5-6 years, it doesn't sound like it greatly damaged you. As the plaintiff, you are suing them for recompense for your loss. It is thus appropriate for you to make an offer, regardless of what some of these super-negotiators may say.



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Posted by CharleyLake on 1/29 at 4:49 pm to Mung
Good points. It is a narrow linear tract that arguably could have been used for another pipeline. A Circle K would be a stretch. Damages could be recompensed for ill-gotten gains. I may get enough out of it to afford a duck and goose lease or keep up my TAF fees. Thanks for your comments.


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