Infant Settlements

A competent adult can settle a lawsuit with a signature, but the rules are different for a child. Under the New York civil procedure, court approval is necessary for the settlement of the claim of an infant, a person under the age of eighteen years. Most negligence claims arise from automobile accidents, fall downs, or dog bites, and a substantial number of those claims are the claims of injured children.

When an adult’s claim is settled, the claimant’s attorney draws a general release, which specifies the party being released, the amount being paid for the settlement and release, and a brief account of the nature of the claim. If the infant is the claimant, however, the fairness of the claim must be reviewed by a judge. A judge of the court in which a lawsuit is pending reviews the application. If the settlement was arrived at prior to the commencement of a lawsuit, the application could be made to any judge of a court that would have both territorial jurisdiction of a lawsuit brought on the child’s behalf, and monetary jurisdiction for the amount of the settlement.

An application for an “infant settlement” is prepared by the child’s attorney. It includes a petition by the child’s parent or legal guardian setting for the nature of the child’s injury and claim, expenses incurred, and reasons why the petitioner thought that the best interests of the child would be promoted by a settlement. An affidavit by the petitioner's attorney addresses the legal issues (usually suggesting that the child might either lose at trial or not recover more than offered in settlement). Also attached are pertinent medical records, police accident reports, and an affidavit from the child’s attending physician setting for a brief statement of the treatment and prognosis. These papers are then topped by a proposed order to be signed by the judge approving the settlement and terminating the child’s future rights to sue. An appointment would be made with the judge, and at the appointed time the child, his parents or legal guardians, and their attorney would appear before the judge in his chambers to discuss the settlement, and once satisfied, the judge would sign the order. The order would provide the amount of attorney’s fees, and if the settlement was substantial, it would direct that the net recovery be put in a special bank account to be withdrawn when the child reached his majority. Earlier partial withdrawals were permitted for good cause shown by petition.

Different judges took vastly different approaches to their review of infant settlements. At one end of the spectrum was Troy City Court Judge Matthew M. Dunne. Judge Dunne was a part-time civil court judge who maintained a private law practice on Second Street, specializing in wills and estates. He was a true gentleman. Attorneys loved to bring infant settlements before him. Although he usually knew nothing of the proposed settlement prior to meeting with the attorney and his clients, he would skim the pages and announce that the proposed settlement was among the finest he had ever seen. He praised the lawyer and wondered out loud how the lawyer was able to get such a large settlement, or a settlement at all, in view of the facts of the claim. The child’s parents would beam, as Judge Dunne suggested that they must be very clever to have hired such a fine lawyer. With a flourish, he would sign the settlement order.

The other extreme was DeForest C. Pitt. Judge Pitt was from the small village of Hoosick Falls. He was very politically connected, and had been County Attorney and then County Court Judge. The rumored mistress of a Republican political leader was his appointed confidential secretary. He was eventually elected to the Supreme Court, a trial court that handled mostly civil cases. Since Judge Pitt was the resident Supreme Court judge, infant settlements in cases that were pending in that court frequently came before him, as did other proposed settlements in which the monetary amount exceeded the Troy City Court’s jurisdiction. To the extent that Judge Dunne made an attorney look brilliant, Judge Pitt made attorneys appear wholly incompetent. In the presence of the infant and parents, he read every word of the documents. Like a proofreader, he corrected grammar, added or deleted sentences, and marked up the documents with relish. Once I saw him change an affidavit that had been signed by a physician! He questioned the infant and parents, and frequently broadly hinted that although he was approving the settlement, he thought the amount low. Sometimes he would get on the telephone and call the insurance adjuster who had made the settlement offer and try to increase the offer. That ploy sometimes resulted in a modest increase in the settlement, since it was difficult for most insurance company adjusters to refuse a Supreme Court judge who started the discussion stating that he was about to reject the settlement unless the amount was increased. The obvious result was that the infant’s parents left the proceeding believing that their attorney was incompetent and thankful that Judge Pitt had become their advocate and was so willing to correct all of their attorney’s mistakes, which were so obvious to him.

While annoying, it was not really too much of a problem to wind up with an infant settlement order that was marked up, because the client did not typically get a copy of the order to take home. The original order was filed in the County Clerk’s office, and a conformed or photocopy of the order was sent to the insurance company or the other party’s attorney who was paying the settlement, and they were used to receiving Judge Pitt’s marked up orders. It was another matter when Judge Pitt signed a judgment of divorce or annulment, however. A judgment in a matrimonial action was the end product that a client took with him or her, and attorneys wanted that to look perfect (even if the terms were not always what the client had hoped for). A matrimonial judgment was not signed in the presence of the client. After the matrimonial hearing, the prevailing attorney would purchase a transcript of the testimony and the judge’s oral decision, and prepare a written Finding of Facts and Conclusions of Law and a separate Judgment for the judge’s signature, which was delivered to his chambers to be reviewed by the judge’s law clerk and then submitted to the judge for his review and signature. Judge Pitt would mark up the proposed judgments as he did with infant settlement orders. Like many other attorneys, I did not want my clients to receive a messy document, so I would have my secretary retype the order, incorporating all of Judge Pitt’s modifications, and resubmit it to his chambers with the originally signed judgment. This was prior to the common use of even rudimentary word processing equipment, so the judgment would have to be retyped from scratch, but the result, a clean document, was worth the extra effort. I always studied the changes that Judge Pitt made to my matrimonial judgments, and incorporated such changes in future documents that I submitted to him. One day his law clerk, Paul V. Morgan, Esq., brought out a judgment of divorce signed by Judge Pitt that had not a single mark on it. Paul was beaming and told me that it was a first. I was confident that I now had the exact language that Judge Pitt wanted, and a few days later submitted the judgment in a similar divorce case that mirrored the prior, unblemished judgment in every possible way. It came back to me marked up with a whole new set of changes added by Judge Pitt in his bright, blue ink.