As founder and former member of Forge Consulting and now a founder of Milestone Consulting, a next-generation, plaintiff-focused settlement planning firm, I want to start a conversation involving one simple change for the better.
When I began in the settlement planning industry, plaintiff brokers were few and far between and trial lawyers were forced to deal with their adversaries' brokers in litigation. Today's playing field is different, due in part to the value that plaintiff advocates, brokers and settlement planners bring to the table. Trial lawyers have learned that negotiating an expert for their client is simple and it's professional liability if they don't. Discussing fair and equal representation in the context of the settlement is expected of the attorneys representing both parties. Remember–it's the parties' lawsuit, not the lawyers'.
Why is a converstaion about consumer protection worthy of any ink? Because it is groundbreaking! Lobbying efforts have occurred in New York, California, and now on a federal level for a simple change in the law that would provide equal protection to plaintiffs and defendants in the context of a structured settlement transaction.
What are some of the potential issues that plaintiffs run into when relying solely on the defense broker for settlement resolution?
- Lack of disclosure and your opponent's experts getting paid on the back of your plaintiff;
- A list of brokers you must work with;
- A list of companies from which your plaintiff must choose their lifelong financial security; and/or
- A settlement that hinges on your agreement to work exclusively with the defense expert, waiving your plaintiff's right to representation in exchange for the settlement.
And the kicker? Your opponent won't tell you any of this until after the case has settled, typically forcing you to jeopardize the very settlement you just achieved for the "tax benefit" inherent to a structured settlement.
Without equal representation, plaintiffs can't expect to have fair access to vital knowledge of industry trade secrets, including property and casualty business agendas, daily rates, jumbo rates, rated ages, split pricing and a host of other variables with significant positive impact.
That's why we're doing something about it.
Recognizing the need for additional consumer protection, Milestone worked closely with lawmakers to ensure that plaintiffs are afforded the protection they deserve. In February 2012, U.S. Representatives Brian Higgins [D-NY], Bruce Braley [D-IA] and Kathy Hochul [D-NY] introduced Bill H.R. 4022, "Structured Settlement Claimants Rights Act of 2012" .
What does H.R. 4022 do?
- Sets up a simple, regulatory framework in which confidential settlement negotiations, which are voluntary, allow for the development of structured settlements;
- Respects the varied interests of all parties; and
- Permits the concept of a structured settlement to be introduced to the plaintiff in a positive light and with expert representation.
H.R. 4022 is a small bill with an expansive reach. Congress intended the tax incentive to act as a catalyst for disabled citizens and their families to make educated financial decisions.
This bill is currently sitting with the House Committee on the Judiciary . It is imperative that plaintiff advocates contact their Congressinoal leaders and urge them to work with the House Committee on the Judiciary to pass H.R. 4022.
 The full text of H.R. 4022 can be found online at:http://www.gpo.gov/fdsys/pkg/BILLS-112hr4022ih/pdf/BILLS-112hr4022ih.pdf
 For more information regarding the House Committee on the Judiciary, visit:http://judiciary.house.gov
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).