When we see a mandatory settlement conference on the calendar in the next few weeks, we generally set a little mental note that says, “Oh yeah, I need to get ready for that hearing.”

Zane P. Uribarri

But this touches on the large question of what does this mean? What do you HAVE to do before an MSC, and what SHOULD you do before an MSC? The best advice is advice we have all heard for many, many years: Don’t put off until tomorrow what you can do today.

There are legal requirements for what must be done before an MSC. We will look at those first but also keep in mind the things that we can do before a hearing to either address the issues, resolve the claim or soften the heart of Pharaoh — the applicant's attorney — into letting my discovery go.

Timely objection

First, should we even be at an MSC? Remember, an MSC is a hearing that will cut off discovery and move the issue or issues set in the declaration of readiness. If discovery is not complete or if there are concerns that the evidence is not sufficient to present the case, do what your law school professors said to do if you ever woke up and were suddenly in the middle of trial: Object, object, object.

An objection to the DOR under 8 CCR 10744 is required to be done within 10 days of the service of the DOR. You must be specific in the objection regarding why the case should not be set for trial or why the request for hearing is not appropriate. An objection is a wise tool to use, no matter the reason for the hearing. Even if the issue is narrow — say, a discovery dispute or a medical treatment issue — an objection preserves the claim that further discovery, medical reporting or other evidence is needed before the matter can be set for trial. Do not leave yourself in the position of having to set a case for trial solely because there was no objection to the DOR.

Where to start

According to the regs, some requirements must occur before an MSC. Under California Code of Regulations section 10759:

The parties shall meet and confer prior to the mandatory settlement conference and, absent resolution of the dispute(s), the parties shall complete a joint pretrial conference statement setting forth the issues and stipulations for trial, witnesses and a list of exhibits by the close of the mandatory settlement conference. A defendant that has paid benefits shall have a current computer printout of benefits paid available for inspection at every mandatory settlement conference.

What exactly does meet and confer require? Obviously, you must reach out to the opposing party and discuss the issues, but what qualifies? Generally speaking, any form of contact should suffice if it will reasonably reach the correct party and open the lines of communication. This can include telephone, email, written correspondence, fax or, if still accepted, carrier pigeon. More often than not, the WCJ will inquire at the time of the MSC as to what efforts have been made to meet and confer, and you should always be prepared with an answer.

Completion of the pretrial conference statement by the close of the MSC has been a loosely interpreted clause in practice. At some boards, it is required that the PTCS be completed by all parties, executed and uploaded ahead of time so that the WCJ can review with the parties at the time of trial setting. At other boards, the PTCS can be e-mailed to the board or e-filed by the close of business. In still other situations, the parties may be given days or even a week to complete the pleading and will still be allowed to set the matter for trial.

Given the disparate interpretation of this clause, it is always best to have your PTCS completed before the MSC. Identify your exhibits with specificity to comply with 10759(c). If it is not possible to complete the PTCS or if your opposing party will not participate, complete and file it before the hearing for the client.

You never know if a judge will set the matter for trial even if no one asks for it (this has happened to me). It is also advisable to familiarize yourself with the requirements of the Workers' Compensation Appeals Board before which you are set.

Finally, the provision regarding the availability of a benefit printout is fairly simple to interpret. If any benefit has been paid, defendant must have a BPO available for inspection at the time of an MSC. As claims adjusters may not always be available on the day of hearing, this should always be requested from them before the hearing in the event that an inspection is requested. This prior contact with the adjuster also allows counsel to discuss the pending issues with the client, as well as discuss and obtain any settlement authority that might be necessary.

What to prepare

You will need settlement documents headed into any MSC. Even if the case does not look like it will settle, the existence of a court date makes many applicants come forward and want to resolve their claim. Since authority is required at the MSC by the Labor Code, negotiation of a compromise and release is facilitated through the completed settlement documents.

Under California Code of Regulations Section 10752, each required party shall have a person available with settlement authority at all hearings. In the days leading up to the hearing, make sure authority for resolution of the claim is available and that you have a contact person you can speak with at the time of the hearing.

Call the other side — not just to fulfill the meet and confer requirements, but to really talk about the issues. Whether it is an applicant's attorney, a lien claimant or a persistent cost petitioner, the issues can often be worked out with a simple discussion. If you wait until the hearing, the other side is likely to feel like it must push a case forward, even if it doesn’t think it is ready, just to get something done. If you can discuss the issues and address the concerns before the hearing, a simple off-calendar will greet you on the day of the MSC.

Zane P. Uribarri is a partner at Bradford and Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.