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Confidentiality Agreements Keep Information About Personal Injury Settlements From The Public

More and more, the railroads and other large corporate defendants in personal injury and wrongful death cases demand confidentiality as part of any settlement of a case. This confidentiality is required by the at-fault party to prevent the injured person or their attorney from disclosing how much money they got in the settlement or the details of the fact that the settlement occurred. This language is typically contained in the long release form that the railroads require at the conclusion of a successful settlement negotiation or mediation. It says that if the injured person or their attorney ever discloses the facts of the settlement, that the railroad reserves the right to go to a court to get their money back or attempt to punish the injured person for having talked about the facts of their injury case and its resolution. These confidentiality clauses are especially common in big dollar, high stakes cases like the F.E.L.A. cases that our firm works on.

The problem is that confidentiality clauses muzzles the plaintiff and their lawyer from sharing what they have learned in the case with other people who were injured by the same railroad or corporation. For example, after settling two big cases in Virginia against a railroad company, I was forced to sign with the client this kind of confidentiality agreement. Part of the reason was to prevent my listing the settlement and the nature of the injury on this website under real cases. It also prevents me from being able to tell other lawyers across Virginia and in national groups who share information about railroad cases about what happened to my client, who was hurt by the railroad as an on-duty worker. This is to my disadvantage, as well as that of the firm, because quite frankly, we use the opportunity to tell others about our cases as a way to advertise and let other lawyers and potential clients know that we know how to handle large injury files against the railroads. It also harms other people who may later be involved in a similar case against the railroad. If I publish in the Virginia Lawyers Weekly, which goes to all the lawyers in the state practically, that I just handled a case involving a particular piece of railroad equipment, then other lawyers may know that if they have a similar case they can call me. Then, I would be happy to share with them what I have learned about proving the railroad's fault. However, the confidentiality agreement essentially stifles any sharing of information outside of the lawyers in my own firm.

From the perspective of the individual client in a big dollar case, they are not going to want to let the railroad's requirement of a confidentiality agreement stop them from settling their own injury case. For the individual client, if he can get enough money to be fair to settle his case, he wants to be done with it and put the injury litigation behind him. As his attorney, it is my ethical duty to do what is to that individual client's advantage. Accordingly, we typically agree to these confidentiality provisions because otherwise, we would not be able to get an agreed resolution with the railroad. This same technique of using confidentiality agreements to prevent the sharing of information among plaintiffs lawyers is very typical in the products liability field. If a product is known to have killed a certain number of people, for instance say the rollover of an unbalanced SUV, the car manufacturers want to keep that quiet. So, anytime they resolve one of these cases, they try to keep the public from knowing by having these confidentiality agreements as part of any settlement. They hope by keeping it quiet that they will prevent other families from coming forward with wrongful death claims about similar vehicle rollovers.

The only possible solution to this problem is for the court system to put a stop to it. Some judges in the federal court in South Carolina specifically have prevented corporations and insurers from routinely inserting these confidentiality agreements in settlement documents. The court's reasoning is that the information should be available to the public and future litigants. However, not enough courts have taken this position to limit the use of confidentiality agreements to situations where they serve some purpose other than preventing other injury claims from coming forward. There are many other cases which I would like to include on our real cases web list, particularly in the railroad injury or F.E.L.A. context, but am prevented from doing so by the routine insertion of these confidentiality provisions in most of my big cases over the past couple of years.

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Shapiro, Cooper Lewis & Appleton, P.C.
1294 Diamond Springs Road
Virginia Beach, VA 23455

Toll Free: (800) 752.0042
Phone: (757) 460-7776
Fax: (757) 460.3428

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