Why Your Lawyer May Ask You to Appear in Court to Read a Settlement Into the Record

It is not uncommon after a lawsuit is settled for a stipulated judgment to be submitted to be signed by a judge. Sometimes, this stipulation is signed by the parties or their lawyers before it is given to the judge. Other times, the lawyers will take the parties before the judge to read the terms of the settlement into the record. The judge will then usually ask the parties to confirm that they agree to the settlement. Two recent cases from Oregon, Aska and Hasson, 278 Or App 48 (2016), <http://www.publications.ojd.state.or.us/docs/A158263.pdf>) and Hoogendam and Hoogendam, 273 Or App 219, 359 P3d 376 (2015), <http://www.publications.ojd.state.or.us/docs/A155813.pdf>), help explain why.

Both cases involved divorces. In Aska, the wife proposed a settlement, and her lawyer sent a proposal to the husband’s lawyer in the form of a stipulated judgment. The proposal was unsigned and left a blank space for the amount of child support to be awarded to the wife. Shortly after that, she changed lawyers. The husband’s lawyer filled in the blank and sent the judgment to the court. The judge signed the judgment over the wife’s objection, and the wife appealed, asserting that she had never agreed to the final terms.

In Hoogendam, the parties went before the judge and read a settlement into the record. Unfortunately, when the lawyers drew up the final judgment, they were unable to agree on the form. The husband then submitted a proposed judgment to the court that differed from the agreement on the record in parenting time, child support, and property division. This appears to be the result of a good faith change in position based on a change in the recommendation of a custody evaluator after the settlement. The wife objected, arguing that the proposed judgment differed from the terms read into the record. The judge signed the judgment, and the wife appealed.

Oregon has two relevant provisions of law. For stipulated judgments generally, a rule of civil procedure states that the judgments are to be signed by the parties, their lawyers, or their authorized representatives, or to be stipulated in open court. The divorce laws also authorize the courts to enforce settlements based on a settlement on the record or a written settlement agreement. In neither case, however, was the agreement actually signed, and in Hoogendam, the Court of Appeals ruled that the judgment submitted to the court simply wasn’t what had been agreed upon. In each case, the wife won the appeal, and the judgment was thrown out as not reflecting final settlements. The cases were sent back for further proceedings. In Hoogendam, the trial judge probably signed a new judgment based on the settlement on the record. In Aska, the parties will probably continue to negotiate.

 

There are two major reasons, therefore, to place a settlement on the record as soon as the parties agree. First, it binds the parties, and, unless they both agree to change the deal, the courts can enforce the settlement. Second, it provides a clear statement of the terms to protect the parties against drafting errors or sharp practice. If you negotiate a settlement and your lawyer suggests putting it on the record, you probably should do it.

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