Recently, the news media has reported extensively on a topic encountered regularly by personal injury lawyers- confidentiality agreements. We are not here to talk about whether you believe President Trump, Michael Cohen, Stormy Daniels, or her legal team. What we are here to discuss is the agreement that has gotten so much attention in recent days- the document signed by Cohen and Daniels (but not Trump) about the confidentiality of their settlement. Whether a settlement is reached by a laborer, a doctor, or the President of the United States, parties to a settlement will often discuss whether that agreement should be confidential. When a person or company pays money to settle a case, they may want those terms to be confidential, in order to escape embarrassment of being involved in the settlement, or to ensure they do not encourage future litigation.
The personal injury attorneys at Mirick O’Connell typically take the view that, unless a confidentiality agreement is negotiated as a part of a settlement, the settlement should be public knowledge. In our view, it is good for the public to be aware of settlements. The fact that settlements exist allows people to know about bad actors, and take steps to make sure they do not become victims themselves. There is a reason that court filings, hearings, and trials are public- the public has a right to know about the justice system.
Civil defendants- and President Trump- often make the argument that confidentiality is the sole reason a settlement is being paid. They suggest that money is being paid solely to avoid the shame, publicity, and business loss associated with paying a settlement. When this desire for confidentiality is addressed ahead of a settlement, our personal injury attorneys are sometimes willing to consider it.
When a party to a settlement seeks confidentiality, it is important to have a skilled personal injury attorney on your side. At Mirick O’Connell, our personal injury attorneys can carefully negotiate the terms of a settlement agreement, and make sure that the agreement is balanced on both sides. As an example, certain defendants will insist that an agreement contains a “non-disparagement” clause. That means that the injured person can not say anything bad about the defendant after the case. At times, we may agree to that term, but we will insist that the term runs both ways, with the defendant being similarly disallowed from speaking badly of the plaintiff.
Every case is different, and in some cases, it is our clients who request that a settlement be confidential. We handle a lot of serious cases, and some of them attract news headlines. It is important to protect the injured person, and ensure that a settlement does not bring unwanted additional attention to them. We weigh this consideration carefully, and always discuss the pros and cons of a confidential settlement with our clients.
Ensuring that a settlement agreement is fair and balanced on all sides is one of the many jobs that a personal injury lawyer has. At Mirick O’Connell, we always ensure that our clients have peace of mind after settling a case, and are not exposed to future legal trouble.