Settlement

What It Is

A settlement is a negotiated resolution of a lawsuit before trial (or sometimes during trial). The vast majority of § 1983 cases that survive the motion to dismiss stage settle rather than going to trial.

When It Happens

Settlement can occur at any point:

• Before filing — Demand letter leads to negotiation
• After filing, before discovery — Defendant wants to avoid disclosure
• During discovery — Evidence emerges that shifts the balance
• After summary judgment — If your claims survive, the defendant’s risk increases substantially
• At mediation — Many courts require mediation before trial
• On the courthouse steps — The day of trial

What to Watch For

Gag Clauses (Non-Disclosure Agreements)

Defendants — especially municipalities — often demand confidentiality as a condition of settlement. They don’t want the public to know what the officer did or how much they paid.

Think carefully before agreeing. A confidential settlement means:

• You can’t talk publicly about what happened
• The officer’s misconduct stays hidden
• Future victims of the same officer can’t find out about your case
• The pattern evidence that future Monell plaintiffs need doesn’t exist

No-Admission Clauses

Almost every settlement includes language like “defendant admits no wrongdoing.” This is standard and usually non-negotiable. What you can negotiate: whether the settlement is public, whether policy changes are required, whether the officer receives discipline.

Attorney Fee Waivers

In Evans v. Jeff D., 475 U.S. 717 (1986), the Supreme Court allowed defendants to condition settlement on the plaintiff waiving attorney fees. This means: “We’ll pay you $50,000, but only if you agree your lawyer gets nothing.”

This practice is widely condemned but still legal.

Indemnification

Check whether the settlement is paid by the officer or the city. In almost all cases, the city pays — even for individual officer misconduct. This means the officer faces no personal financial consequence.

Negotiation Tips

• Don’t settle too early — Before discovery, you don’t know the full extent of the evidence. The defendant does.
• Know your bottom line — What’s the minimum you’ll accept? Factor in the emotional cost of continued litigation.
• Consider non-monetary terms — Policy changes, training requirements, officer discipline, public acknowledgment of wrongdoing
• Get it in writing — Every term, every detail. Oral agreements are worthless.
• Have someone review it — Even if you’re pro se, consider having an attorney review the settlement agreement before you sign.

Key Cases

• Evans v. Jeff D., 475 U.S. 717 (1986) — Fee waivers in settlement are permissible
• Marek v. Chesny, 473 U.S. 1 (1985) — Rule 68 offer of judgment and its effect on attorney fees