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Crafting a Good Release: University of Miami v. Francois and the Perils of Language

Settling a case is usually a good thing. A compromise, to be sure, but a good settlement resolves a dispute and, if your represent the plaintiff like we do at our firm, settlements put money in your client’s pocket and, in turn, in yours. But the work doesn’t end once you agree to terms. Crafting a good release is a challenge and requires the plaintiff attorney’s close attention. Be careful to limit the release to only the party with whom you are settling. Too often, release language is overbroad and purports to release the settling party not only for past conduct, but all future conduct as well. This is usually not what you are bargaining for, and can subject your client to problems and you to legal malpractice in the event there is a future entanglement between the parties that was unrelated to the current case. What’s more, you must be especially careful to reserve all rights against other potential or current defendants. You should also expressly limit the release to the party you are releasing. If you do not expressly reserve the right to proceed against other potential joint or subsequent tortfeasors, you will be deemed to have released them all, even though your bargain was only with the party released. Sound hard to believe? Check out the case of University of Miami v. Francois. There, the plaintiff released the initial tortfeasor in a settlement agreement. The plaintiff had an ongoing case with a remaining defendant, the University of Miami School of Medicine. But because the release lacked an explicit reservation of rights against additional defendants, the Third District Court of Appeal held that the University of Miami was released by the settlement agreement with the initial tortfeasor. Language counts! So be careful to craft a release that accomplishes what you bargained for, but not more than that