she should not have agreed to settle for $ 1,500.00.
Mr. Morrison testified that he discussed the possibility of settlement with Ms. Berntson on September 9, 14 and 16, 1992. He testified that he spent several hours with Ms. Berntson on September 9 and 14, attempting to prepare her for trial. She was to be his only witness. He testified that Ms. Berntson exhibited almost no memory of the events that would be in issue in the trial. He said he brought up the issue of settlement because he concluded she would not be a good witness. He was also concerned that she would not have the emotional capacity to undergo cross-examination or the stress of a trial.
Mr. Morrison testified that on either the 9th or 14th of September, he asked Ms. Berntson what amount she would take in settlement and she indicated $ 10,000.00 or more. The Government indicated it would pay only $ 500.00. On September 16, Mr. Morrison testified he again asked Ms. Berntson what amount she would take to settle the case and she said $ 1,500.00. He testified that he called the Government attorney, who said she did not think she could settle for more than $ 500.00. However, the Government came back with a figure of $ 1,000.00.
Mr. Morrison said he knew from past discussions with Ms. Berntson that she would not take $ 1,000.00, although he may have asked her if she would take that amount. He decided to put in $ 500.00 of his own to avoid having her go through the trial.
Mr. Morrison also testified that he was not abrasive with Ms. Berntson. He says he learned she was dissatisfied with the settlement a few days after September 16.
On the basis of the testimony that I heard, I am unable to conclude that Ms. Berntson was coerced into settlement. At the hearing, she was shaky. She and her husband repeatedly volunteered that they were surprised she had not had a seizure so far during the hearing. Ms. Berntson's own testimony was that she freely agreed to settle the case for $ 1,500.00. People have many reasons for agreeing to a settlement. Avoiding the stress of a trial is probably a fairly common reason. It is possible that Mr. Morrison added to that stress by an abrasive manner (although he did not show such an attitude in court it is possible he did with his client), but Ms. Berntson chose her attorney and she did not indicate that he was suddenly acting in a manner that was different from any way he had acted on previous occasions. (Ms. Berntson's husband was the only person in these proceedings to raise his voice -- he had to be admonished to lower his voice at one point -- and Ms. Berntson did not appear to react to his raised voice.) At any rate, based on Ms. Berntson's own testimony, I can find no basis for concluding that she was coerced into agreeing to the settlement.
The last issue is whether, even if Ms. Berntson was not coerced into the settlement, she should be bound by it against her wishes when the Government is not, as she had thought, paying the entire settlement. A settlement agreement is a contract. To constitute a valid contract, there must be an offer, acceptance and consideration. Taylor v. Gordon Flesch Co., Inc., 793 F.2d 858, 862 (7th Cir. 1986). Assent to the contract must be knowing, that is, "done voluntarily and purposely, and not because of a mistake or accident." Id. at 863, quoting from United States v. Jones, 696 F.2d 479, 493 (7th Cir. 1982). The parties to the alleged settlement in the present case were the Government and Ms. Berntson. The Government offered $ 1,000.00 in settlement. Ms. Berntson accepted what she believed to be an offer of $ 1,500.00. Without question, there was no agreement on a settlement between the parties to the case. While Ms. Berntson could have agreed to a settlement that would have involved $ 1,000.00 from the Government, and an additional $ 500.00 from her attorney, she was not told that this was what she was being offered. I conclude there was not a valid contract.
It follows that the judgment of dismissal in this case must be vacated and the case set for further proceedings.
ELAINE E. BUCKLO
United States Magistrate Judge
Dated: March 8, 1993.
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