Michael Helfand

A high-low agreement is a form of settlement, made before or during trial, in which both sides agree to high and low limits as to what the case will be worth. The parties are agreeing to put limits on the jury verdict.

In a high-low agreement, each side has the chance to minimize their risk. For the plaintiff, they get the benefit of knowing that they’ll get paid either way, whether they win or lose. For the defendant, they get the benefit of avoiding a runaway jury award, which can be extremely high.

In order to get these benefits, each sides gives a little. The plaintiff is agreeing to not take a huge jury award, and the defendant is agreeing to pay even if the jury says they win and don’t have to pay anything.

These agreements are just one type of settlement. In this type, the jury still deliberates and comes back with a decision. If the jury’s decision is outside of the limits, then the agreement comes into play and the verdict doesn’t apply. In a typical settlement, the parties come to an agreement on a settlement amount and the case is over without going to the jury.

High-low agreements come in many forms and appear in many different types of cases. This is just a general overview. If your attorney is suggesting a high-low agreement in your case, make sure you understand the reasons behind it and why it would or would not be a good idea in your circumstances. In any settlement situation, make sure your attorney is suggesting the agreement because it is in your best interest and not because it guarantees that they’ll get paid. A good attorney should be willing to take your case to trial if need be, and they should have the resources to do so.

A reader asks:

I am looking for a Chicago lawyer to help me get a commission of more than $10,000 that my employer owes me from some sales I have made.  They say I won’t get it because I took a new job and their company policy is that you have to be employed at the time a commission is due.  That seems unfair.

It is unfair, but under the Illinois Wage Pay and Collection Act, employers are allowed to set their own policies as to when commissions can be earned and paid.  It’s completely legal for them to say you have to be an employee to get your money.  We’ve seen many other situations where an employee doesn’t get paid until the customer pays.  That too unfortunately is legal as well.

So to determine whether or not you will get paid a commission, we have to see what policy your employer has.  They can’t just change it on the fly and if it’s not in writing then there is a good chance that it doesn’t actually exist.

My advice to any sales person is to get clarification in writing before you start performing work.  Otherwise you may find yourself at their mercy.

But whatever you do, don’t assume that you are owed nothing.  We will always give you a free consultation to determine if there are any loopholes or rights that you have and will of course do whatever we can to make sure that you get paid.  Often we find that other violations are occurring that entitle you to your money in the end.

I don’t know of very many people that enjoy having to go to court and testify.  In fact, the only people who really like it are expert witnesses who get paid for their time being there.  Otherwise almost every witness, plaintiff or defendant I’ve ever met would rather be somewhere else.  That said, if you have to do it, I’m sure it is made easier if you know what to expect.  I’m surprised how many lawyers don’t prepare their clients about what is going to happen and how to approach the day.  And if you are just a witness and not part of the case you can bet that no one is going to give you advice.  So for those that do have to go to court in Illinois to testify, here are some things to know:

1. It’s not very much like what you see on TV in that it’s very boring, doesn’t happen fast and in most cases a witness is just a piece to the puzzle, not the reason everyone is there.
2. What is like TV is that there will be a Judge, a court reporter, security, lawyers for each side and in some cases a jury.
3. There is no dress code per se, but you can’t wear a hat or messy clothing and you wouldn’t want to.  That doesn’t mean that you have to wear a suit, but you should look nice.  No shorts, no t-shirts is a good rule of thumb.  No open toed shoes are another.  For men, a collared shirt and khaki pants is usually acceptable.  For women, a conservative top and long skirt or pants works.
4. It may seem obvious, but your job is to just be honest.  Don’t embellish or say what you think the lawyer asking questions wants to hear.  It’s the job of an attorney to ask the right questions.  Your job is to just answer them truthfully, not figure out what he/she wants to hear.
5. Just answer the question asked.  The worst thing a witness can do other than lie is to ramble on and on.  Most questions are yes or no.  If they require an explanation, again the attorney can ask for one.  For example, if a lawyer asks you, “Were you at the 7-11 on June 1^st when it was robbed?” you should say “yes”, not “I was because my wife had asked me to go and pick up some ice cream because she was pregnant at the time really was craving chocolate chip which is her favorite.  Anyway, I saw this guy with a gun . .. ”  When you add in extra information it drags the process out, frustrates the Judge and doesn’t help anyone.
6. There is no reward for finishing fast.  Your answers are under oath.  So before you answer, make sure you understand what the question is.  If you don’t understand the question, tell the lawyer that asked it that you are not sure what they mean.  It’s their job to ask a clear question.  If you need a moment to think of your answer or how to say it, that is fine too.
7. There is a court reporter taking down everything that is said.  She can only get down one person at a time.  So if the lawyer is asking a question, even if you know what they are asking, let them finish the whole question before you answer.  And to the best of your ability, talk slowly or at least in a normal speech pattern.
8. If you hear one of the lawyers object to a question you should stop talking and wait for the Judge to instruct you on whether or not to answer.
9. There may be times when the two lawyers and the Judge are having a side conference or when an attorney takes a five minute break or something else happens.  Bottom line is that it’s not exciting and don’t expect it to be.
10. While it may be nerve racking for you to testify, the reality is that unless you are in a high profile case that is being covered by the media, the only people that care about what’s going on are the parties to the case.  So relax and just focus on the truth.
11. Most lawyers are really nice.  It’s possible that one of the attorneys will be aggressive in questioning you, but the Judge will not let them bully you.  And if there is a jury, they don’t want to look like jerks so usually they will be nice even if they are trying to poke holes in what you are saying.
12. If you are a plaintiff or defendant you should be at the court hearing the whole time.  If you are a witness and testifying by a subpoena (e.g. you have to be there per court order), you can leave usually when your testimony is done.  You will always be subpoenaed for the start of the day, but often don’t testify until the afternoon.  Many attorneys will tell you when they’ll need you and often will let you be “on call” as long as you are near by.  Just ask.
13. Every case and witness is different, but most get off the stand after an hour or so.
14. If you have a health issue, let the Judge know.  So if you have a bad back, ask the Judge if you can stand as needed.  If you need to take a drink of water, do it.  And by all means, if you need to use the bathroom, ask the Judge if you can take a break.
15. Finally, when your testimony is done, there is still a chance you could be recalled to testify again.  You shouldn’t discuss the case with anyone related to it (e.g. the plaintiff, a lawyer, etc.) until the case is over.  But don’t stress, almost every time you get off the witness stand you are done forever.

Hopefully these tips help.   And remember, it could be worse.  You could have jury duty!