Kevin Yee takes the much publicized lawsuit between Todd Bertuzzi and Steve Moore to show how settlement negotiations work behind the scenes.
This past Tuesday (August 19), news broke that Steve Moore’s lawsuit against Todd Bertuzzi was settled. I wrote a piece on this case earlier this year in anticipation of the civil trial starting on September 8. It appears the parties have now settled out of court. Although the lawsuit would have made for a fascinating jury trial, this has settled like the vast majority of most lawsuits.
Details of the arrangement might trickle in here and there. The speculation will be boundless. Ultimately, only the parties involved know what the settlement was for. It’s likely that they would be bound by confidentiality clauses in their agreement so I won’t hold my breath for Steve Moore’s tell-all book.
The scheduled trial date was still several weeks away but the settlement is relatively late. Think of how long these proceedings have gone on. The attack itself happened over 10 years ago! The conclusion of this drawn out story does offer an opportunity to look at how negotiations are conducted and lawsuits get settled. So what goes on in these 11th hour negotiations? What took the parties so long?
There are many factors at play in these negotiations. At this stage just weeks before trial, both sides will have had their cases mapped out. They have lined up their favourable witnesses and experts (doctors, therapists, consultants, NHL agents, NHL executives, et cetera). They have a sense of how to most convincingly tell their story at court. Based on all of this, each side knows the strengths and weaknesses of their case (and the opposing side’s).
From a lawyer’s perspective, there can be a lot going on behind the scenes at this stage. These won’t be discussed by panelists on any sports show. In the late stages of trial preparation, surprises flood in that help or hurt a case. For example, a party might get that added boost of confidence for trial. Alternatively, someone might suddenly get cold feet. Perhaps a key witness is found (or lost). Maybe one side finds out that the other side has some damning evidence. Lawyers may uncover a procedural hurdle that keeps out some crucial evidence. One side may not think the judge that they drew was favourable.
Trial preparation can be terribly complicated. There can be countless moving pieces to coordinate. All of this factors into the perceived bargaining power in negotiations. Quite simply, the greater the risk at trial, the more incentive to settle out of court. After all, a trial places the fate of your case out of your hands and into the hands of a judge (or jury).
There are definitely other factors that are considered in a settlement. Often, people simply don’t want to proceed to trial because it is a public venue. Maybe the party doesn’t want to be cross-examined on the stand for hours on end. They may not want aspects of their personal life scrutinized and cast in the spotlight. Steve Moore’s case was how the injuries he suffered were so severe that his life was changed in every way. “Every way? Every single aspect of your personal life was affected?” the cross-examining lawyer may wonder aloud in front of the jury. And so begins an unpleasant line of cross-examination. And this is not to mention Moore’s friends, family, spouse, personal trainer, et cetera, who might have been called upon as witnesses at trial.
Avoiding a trial can work well for everyone. Trials cost money. Court time itself is expensive. Witnesses and jurors require fees for attending. And of course, there are legal fees.
I won’t add to the speculation as to how the negotiations in Moore v. Bertuzzi turned out. I have no clue how much money Orca Bay, the Canucks organization, and Bertuzzi may be paying Moore. But what this settlement means to me is that all parties found a number that they could live with—a number that they preferred over the rigors of a long, expensive, highly publicized, and unpredictable trial.
Whatever the amount is, this is what the settlement means: Moore gets paid an amount he agrees is fair compensation for the impact the attack had on his life. The defendants came to terms about how much they would each contribute to the overall sum. And so, we won’t get the drama of a jury deciding a case 10 years in the making. Instead, this case has fizzled away and given everyone involved a chance to quietly move on with their lives.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.