00-1491, 00-1915 Lynch Inc. v. SamataMason Inc., et al.

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“Lynch would have a much stronger case if at the outset the judge had said, ‘This is an off-the-record settlement conference and no settlement arrived in it will be deemed final and enforceable.’ If the judge later ‘recollected’ that a final and enforceable settlement had been reached, a party promptly objecting to the terms of that so-called settlement would be entitled to an immediate evidentiary hearing to explore the accuracy of the judge’s recollection. And likewise if the judge had refused to permit the settlement agreement to be read into the record. Although ‘disputes over judicial recollection are not customarily resolved by placing the judge on the witness stand,’ United States v. Daniels, 902 F.2d 1238, 1242 (7th Cir. 1990), if that is the only means of resolving such a dispute satisfactorily, then so be it; there is no rule against proceeding thus. In United States v. Newman, 982 F.2d 665, 670 n. 6 (1st Cir. 1992), a similar case, the district judge offered the parties an opportunity to question him on the record concerning his recollection. (Not, so far as appears, to question him under oath; but that is a detail.) See also Higbee v. Sentry Ins. Co., supra, 253 F.3d at 997. But a party that had a chance to get the settlement read into the record will not be heard to complain that the judge’s recollection is inaccurate, least of all in a case in which the party has nothing more than its own say-so to cast doubt on the accuracy of that recollection. Lynch thinks that no agreement was reached on paragraph 2 as well as on paragraph 5, but it did not think to have its understanding recorded during the November 23 conference, though it must have realized that SamataMason and the judge might have a different impression. In these circumstances, there is no basis for reinstating Lynch’s suit.”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Denlow, Mag. J., Posner, J.