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Silent settlement doesn't include fees, costs

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A federal judge rejected a northern Indiana sheriff's argument that a settlement agreement in a civil rights case includes attorney's fees and costs when the agreement doesn't say anything on the issue.

In a Dec. 30 order from Chief Judge Robert L. Miller Jr. of the U.S. District Court, Northern District of Indiana, South Bend Division, St. Joseph County Sheriff Frank Canarecci Jr. claimed a $75,000 settlement reached between the sheriff and the relatives of a jail inmate who killed himself included attorney's fees for the plaintiffs even though the settlement stated nothing about the matter.

Relatives of inmate Gregory Zick sued Canarecci and 26 other defendants in 2005 after Zick committed suicide while in jail in 2003. Summary judgment was granted to all the defendants on the federal claims, except for an Eighth Amendment claim against Canarecci. The parties settled in the summer of 2009 before the issue went to trial. Cathy Minix and Steven Zick, Gregory Zick's mother and brother, filed a motion for nearly $745,000 in attorney's fees and costs.

Chief Judge Miller denied Canarecci's motion to strike in Cathy Minix and Steven Zick v. Sheriff Frank Canarecci Jr., et al., No. 3:05-CV-144, because there was no evidence the parties' settlement was intended to include attorney's fees and costs. Canarecci argued that a court could assume a settlement agreement in a civil rights case that didn't spell out attorney's fees and costs automatically included them in the settlement. Chief Judge Miller noted the 7th Circuit Court of Appeals has yet to take up this question.

"To assume that an agreement such as this one was meant to include attorney's fees and costs would run counter to Congress' policy of awarding attorney's fees to private attorneys general," wrote Judge Miller.

The judge also rejected the request for almost $750,000 in attorney's fees and costs because the plaintiffs' application fell below the level of specificity required by Hensley v. Eckerhart, 461 U.S. 434. The plaintiffs weren't specific enough in the amount of hours worked by the attorneys or expert witness fees on only the Eighth Amendment claim. Chief Judge Miller allowed the plaintiffs leave to re-file their motion within 10 days of the order "with a more reasonable request and with more reliable yardsticks by which the court may determine their award."

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  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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