Transparency in Settlements: An Argument Against Confidentiality

11/02/2007
By Robert A. Clifford 

   Open courts and records, including settlements, are a hallmark of the American judicial system.   But all of that is changing.  Although everyone’s experiences may be different, I think it is a common denominator among trial lawyers that confidentiality agreements have grown like amoebas over the last 30 years.  When I first started to practice, including such a clause in a settlement contract was a rarity.  Today, it is clear that in the tort world – those in an emotionally charged situation – are left with the difficult choice of whether to settle the matter in deals sweetened by a secrecy clause. While there are some legitimate reasons for confidentiality, most of those fall or simply do not exist in the vast majority of these cases.  However, an increasing number of corporate defendants are demanding confidentiality in settling cases because business interests want to keep people uninformed in their concerted effort to gain more from the system.  The result is that keeping those similarly injured in the dark provides corporate America with a distinct advantage, all at the expense of the innocent and uninformed.  In other words, the less transparent the settlement, the greater the risk to the public on many levels.

Clifford Law Offices