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Publication History: Originally published in the Outdoor Program Handbook, Ron Watters, Idaho State University Press, Pocatello, 1986, pp. 83-96.
This paper provides a broad introduction to the problem of liability. It includes a list of practical suggestions that can be instituted by a program to help minimize liability risks.
Editor's Note: Endnotes within the text are
indicated with bracketed numbers (example: ) and refer to the references at
the end of the paper. The reference list is also a good starting place if you
wish to do additional research.
The Specter of Liability
Liability of outdoor programs continues to be the greatest concern among administrators and professionals in the outdoor field. In some ways, the concern has had some beneficial influences in the correction of shoddy, poorly-conceived operations. But the fear of liability has gone far beyond reason. Some administrators, so paralyzed by the thought of liability, won't even allow well- thought-out programs with experienced, qualified staff to get off the ground.
Such fears are mostly unfounded. Little documented
evidence exists that high risk outdoor activity programs are great liability
risk. Since liability is a part of life, however, a director of a program
must be prepared to deal with litigation should it occur. Individuals involved
in outdoor recreation programming, according to one attorney, "cater to the
interests of a diverse set of clients . . . . All of the clients, however, have
one thing in common . . . they and their families are potential plaintiffs; and
those with special knowledge or skills who provide the recreational services
that they want or need are potential defendants."
It is helpful to look briefly at legal procedures and terminology before getting deeper in the topic of liability and outdoor programming. As a hypothetical case, a participant by the name of J.D. is on an institution's outdoor program trip. He is injured on the trip and decides to sue.
Legal action commences when J.D. finds an attorney to file a complaint. A complaint is a legal document, filed with the court clerk that lists the names of the parties involved, alleges the wrong wrought upon J.D. and asks for some dollar amount of damages to compensate J.D. Since J.D. initiated the action, he is called the plaintiff. The institution and whoever J.D. names in the complaint are defendants.
The complaint and a summons which notifies the defendant how long he/she has to reply to the complaint arc usually delivered in person by a law officer to the person at the institution named in the complaint. An attorney for the institution must file an answer which denies the various allegations in the complaint along with the reasons why.
Various motions can be filed depending on the strategy of the attorneys involved. At any time after the complaint is received, attorneys for both the defendants and the plaintiff can meet and, with approval from their clients, agree upon an out-of-court settlement.* In most cases, the process that occurs after the complaint is served is called discovery, which is the gathering of evidence and facts about the case. A common form of discovery is a deposition, where an attorney questions the opposing party in the presence of their attorney or selected witness. Depositions are recorded and typed up in the form of a document. Discovery also occurs through interrogatory, in which questions are requested in writing as opposed to being asked verbally during a deposition. Thus, the attorneys for both parties put together the facts of the case through depositions, interrogatories, or other forms of discovery, in order to prepare for court. Before going to court and when facts have been assembled, an attorney can motion for a summary judgment. A summary judgment, if decided in favor of the defendant, stops the case (unless it is appealed) from going through expensive court proceedings. Once all the motions are decided upon and the case has not been stopped, it continues on to a jury trial.
Each institution must weigh the merits of the case
and often the outdoor program director will have little say in the matter, but
it is highly recommended that the director do everything he/she can to encourage
officials of the administration to fight such cases on the matter of principle.
When dealing with an administration that seems bent on taking the cheaper way
out, it might be possible to rally public and student support and create a legal
defense fund to pick up the expenses.
A tort is interference with a person to cause
injury. Tort liability is the type of law which would apply in cases
involving outdoor programs. The injury may be in the form of injury to
property, injury to the person or other injury by the negligence of another.
In order to win a liability case, a plaintiff must prove the existence of four
essential elements of tort law.
1. A "duty" was owed by the outdoor program to
provide protection to the plaintiff.
2. An agent of 'the outdoor program "breached" this duty and failed to provide a standard of care expected of him/her.
3. The negligent act of the outdoor program's agent was the "proximate" or direct cause of injuries or damages to the plaintiff.
4. The plaintiff did, in fact, receive injuries or damages.
A plaintiff, with supporting evidence, must prove all four of the above in order to recover damages. If a plaintiff can prove only one or two, the defendant wins. The plan to minimize liability which is established by an outdoor program, thus, largely centers around these elements of tort liability.
It should be noted that liability can't be
prevented. Anyone can file a complaint. The idea is to develop an arsenal of
as many arguments as possible in the program's favor. A suggested way of doing
so is explained in the next section. The more arguments the judge or jury have
to pick from, the better the program's position. The court may not buy some of
the arguments, but it may be one argument out of the arsenal that they do buy
which is the key to winning.
The following procedures are not difficult to institute in an outdoor program setting. Other sources, particularly those that are removed from the pragmatic aspects of running a program, make a lot of well-intentioned suggestions, but they are often impractical. Most of the suggestions from the sources deal with setting up procedural plans and rules. The problem lies with the impracticality of trying to follow the same rules and procedures in planning and conducting every trip. Also, if such procedural plans exist, a plaintiff's attorney will obtain them, search them with a fine tooth comb and find an obscure procedure that wasn't followed. It also should be noted the sample trip sheets found in the "Outdoor Trips Chapter" are an important part of a program's liability plan. The sheets have incorporated applicable portions of the following suggestions.
The suggestions are:
1. Carefully formulate the objectives of the program. Goal formulation in relation to liability is explained in detail in the Defining Goals and Objectives Chapter.
2. Go out of the way to disclose that risks exist
on outdoor program trips. Include information about risks on the sign-up sheet
and on brochures published by the program. Place a colorful sign on the trip
board. Include information about risks in any pamphlets or letters describing
trips. Talk about risks at pre-trip meetings.
The fact that a plaintiff freely undertook the activity when knowing of the risks is a strong and essential defense for a programs. But in order for the defense to be valid, two points are important: (a) the participant must understand the risk, and (b) the participant must freely choose to assume the risk (see #5).
3. Emphasize through program literature--brochures, schedules, etc.--that the outdoor program does not assure the safety of participants. Remind individuals that they are participating at their own risk. The more the fact is emphasized the less is the "duty" of the programs.
4. Have available in the program's resource center additional magazines and, particularly, how-to-books on the activities which are offered through the program. Make a note in brochures, bulletin boards and sign-up sheets that literature on the risks and safety procedures of the program's activities is available. Providing such information shows the court that the program is doing everything possible, including the provision of literature, to help participants make informed decisions about participating in trips. (See Facilities, Resources and Activities Chapter for information about setting up a resource center).
5. Avoid pressuring, cajoling or requiring someone to go on a trip. A program's liability exposure increases greatly when a certain trip is required as part of a class. The fact that a plaintiff undertakes trips voluntarily is a strong defense. This very point was one of the primary reasons a judge, citing no "duty" was owed, ruled in favor of an institution in a recent case against an outdoor program. Along the same lines, avoid requiring participation in all parts of a class or a trip. If participants feel any portion of a trip or class is beyond their ability or has greater risks than they want to accept, they should feel free to not participate in that aspect. Encourage participants to do their own thinking and evaluation by written reminders on sign-up sheets and release forms as well as vocal reminders.
6. Avoid making trips sound as if they are all fun and there is little danger. Avoid making assurances that everything on trips will be safe and participants will be well taken care of. Particularly watch the wording of program brochures. , According to one author: "In your attempts to sell prospective participants on the advantages of your programs, do not promise too much. You may become liable by virtue of the extraordinary claims, promises or guarantees . . . ."
7. Include release language on sign-up sheets. Though releases are not a guarantee to liability immunity, they do occasionally stand up in court. Having a release might be the one defense that wins the case.
8. If possible, run trips as joint enterprises or common adventures. To do so, five key elements are important: (a) Everyone, including the trip initiator, shares the expenses of the trip. (b) Everyone on the trip understands the fact that it is a common adventure trip and what this means. This can be accomplished by including the information on sign-up sheets, on the trip board and on brochures about the program. A special pamphlet primarily devoted to information on what a common adventure trip is can be prepared and made available to all trip participants. In addition, the common adventure idea can be explained through slide shows or videos and word of mouth. (c) Everyone on the trip has equal voice. This is accomplished by use of pre-trip meetings where everyone helps with the planning and preparation of trips, i.e, one person becomes the group's treasurer, another arranges food, another obtains equipment, etc., and by the use of democratic leadership on the trip itself. It also means the "absence of any relationship such as teacher-student or guide-client, etc." (d) Everyone understands the risks to be faced on the trip. (e) Everyone understands that one member of the outing may not hold the other liable.
9. In a common adventure trip program, make it clear to participants that such trips are not sponsored or sanctioned by the university. According to Betty Van der Smissen, who has authored a number of articles on outdoor liability, "When an activity is sponsored a duty arises between the sponsoring agency (and its employees) and the participants [author's emphasis]. Make note of the non-sponsorship on sign-up sheets and bulletin boards. This point is a question of semantics. A plaintiff's attorney, of course, will argue the point, but a successful counter argument can be offered that the program is simply providing a place for people to come together and organize their own trips. The system works like a ride board, where the institution helps individuals with vehicles and individuals who need a ride to come together, but it doesn't sanction or sponsor the rides or riders.
10. In any program model, whether it is common adventure or instructional or otherwise, place responsibility on the participants' shoulders by making them an integral part in the decision-making process before and during trips. Avoid becoming a guardian of the participants by laying out a series of rules they must follow. The more a participant is placed under the "control" of the outdoor program, the greater becomes the program's liability. Conversely, the greater the responsibility of the participant, the greater his/her responsibility to shoulder the consequences when something goes wrong on a trip. Include language on sign-up sheets or release forms placing responsibility on participants to do such things as informing other participants or instructors of health problems that could be a problem while on trips, obtaining and taking proper equipment and clothing on trips, honestly evaluating their abilities before undertaking more advanced trips, etc. (See sample sign up sheets in the Outdoor Trips Chapter.)
11. Hold pre-trip meetings, particularly for overnight or longer trips. The fact that pre-trip meetings are held indicates to the court that trips are not just thrown together haphazardly, and that advanced planning has taken place. It is at the pre-trip meeting where participants learn more information about the trip and they can make a more educated choice about whether or not to participate. Also in the pre-trip meeting they take on responsibilities for running the trip. Wetzel, in "Advisor Liability In Outdoor Recreation Programs," recommends a detailed list of items to be talked about at pre-trip meeting. However, while such a list is a good idea, it may be impractical for trip initiators--or paid instructors for that matter--to try to cover all points every time a pre-trip meeting is held. It is far easier to emphasize three main points for trip initiators to cover: (a)How difficult the trip is. (This is a normal discussion topic at a pre-trip meeting, but it provides information to help participants make sure they don't get in over their heads.); (b) What equipment is needed. (This is another common topic at pre-trip meetings. Trip initiators can be helped greatly if the outdoor program provides mimeographed equipment lists of each activity.); and (c) A reminder at pre-trip meetings that the trip is dangerous. (This is a spoken reminder, in addition to all the written disclosures of risks, that serves as one more attempt to prewarn participants of the risks of trips.). These are three easily remembered points and when covered at pre-trip meetings provide participants with sufficient information to make their own choice about participating.
12. If a program runs guided/packaged trips or instructional trips, it will be assuming greater liability risks. Thus, it is wise to make sure that the objective risk is low for such activities--do kayaking classes in the pool or on easy rivers, run cross-country ski classes in parks or golf courses, conduct rock climbing on short, easy cliffs, etc. Make all parts of the class optional. If there is a particular climb the person does not want to do, he/she shouldn't have to do it. Let people know this policy and encourage them to make their own decisions.
13. Participants under the legal age will be treated considerably differently by the courts than adults. Common adventure programming--though the concept can be used as an excellent educational tool--does not minimize liability when activities involve children. From a liability standpoint, it's probably best not to include children on trips if at all possible. College programs basically deal with individuals of legal age or older and this is normally not a concern, but if children are included, make sure objective risk is low and extra efforts are taken to make the activity safe.
14. Avoid getting into the transportation business. Check state laws regarding transportation of individuals. If school or government vehicles are used and the program charges for transportation for purposes of financial gain (becoming a "common carrier"), the courts will hold it liable in vehicle accidents.
15. Avoid developing detailed lists of safety
procedures for each activity. Instead, at program staff meetings or discussion
sessions with participants, make it a point to discuss safety procedures.
These regular discussions, with a give and take of ideas and with a sincere
attempt to provide safe activities, can do far more than lists of safety
procedures. Written lists, often, are filed away or handed to new employees
and are rarely topics of discussion. Discussions also help staff members and
volunteers understand what reasonable care is (see #19). If possible, keep a
file of notes of staff meetings. The file does not have to be fancy. Someone
on the staff can jot down a couple of notes. Many programs keep notes of
their staff meetings and such a procedure doesn't represent an added chore.
The notes provide documentation that, indeed, the program is concerned about
safety and in lieu of detailed lists, the program takes a wiser and more
responsible approach to the question of safety.
Since this approach to liability may be perceived by some as controversial, it deserves some further clarification. The problem with a list of safety rules is twofold: a plaintiff's attorney will have a hey-day with the list. Any diligent attorney can find a procedure on the list that someone didn't follow. The attorney will argue that it was an outdoor program agent's gross negligence in not following this "important" procedure which led to the accident.
Secondly, and by far more importantly from the standpoint of having a true interest in safety, is the fact that outdoor program instructors and professionals need to be flexible in dealing with problems that could occur on trips. Their actions shouldn't be an automatic adherence to rules. Rather a true professional should think, evaluate, and based on his knowledge of a variety of safety procedures and not just one list--pick the safest option. "Rules are for fools," Paul Petzold, whose experience in outdoor education spans more years than most, has said on more than one occasion. Douglas MacAurthur had as one of his principles while serving as superintendent of West Point, the apothegm that "rules are too often for the lazy to hide behind." On top of this, there is disparity in the field. Get a group of outdoor leaders together in the same room and see if they can reach any consensus on one list of safety procedures for a particular activity. Even something as innocuous as requiring helmets for climbing would be challenged by one of the most respected authorities in the climbing world, Yvon Chouinard. The person who is not lazy, to use MacArthur's adjective, is the one who keeps up with the latest equipment, clothing and safety procedures and then, in order to make the activity the safest he/she can, applies this knowledge in the best way to the situations and circumstances with which he/she deals.
16. Don't waste time acquiring a lot of certificates. "The holding of a certificate does not protect from liability," Van der Smissen notes. It is not the certificate that is important, rather the education and exposure to new ideas that is of greater importance. Some certificate programs may be valuable, such as Red Cross First Aid, or specific sport certification programs taught by a well-known individual in the field. But on the whole it is far better to dispense with the collection of a series of wallet cards and certificates for the wall. Instead, concentrate on furthering your education and knowledge in the field. Attend state-of-the-art seminars and symposiums in the field--such as those sponsored by the American Avalanche Institute or workshops sponsored at such conferences as The National Conference on Outdoor Recreation, and keep up with the latest information in outdoor magazines and journals.
17. If participant's vehicles are used, include language on sign-up sheets placing responsibility for safe use of vehicles on drivers. Particularly on common adventure trip programs where participant vehicles are used almost exclusively, remind participants that they are expected to have their own liability and medical insurance.
18. Use common sense when dealing with alcohol on
trips. Alcohol policy will be handled differently by various programs. Some
programs have strict rules against alcohol use and others prefer to have
participants make choices as responsible adults.
Whatever the program model, participants and staff should avoid drinking and driving. Because of the recent national surge in sentiment against drunk driving, the program would be in a very poor position, indeed, if injuries or deaths resulted from a driver who had consumed alcohol or drugs. One other situation to watch is drinking around the campfire. At least two serious accidents and one death have resulted from a drunk individual wandering away from the camp and falling off rocks. One involved an outdoor class in which a suit was filed against the university. This is not to suggest that drinking should be forbidden around the campfire. Literally thousands of outdoor program trips have been safely conducted over the years with plenty of social drinking in the evening. Because of the nature of our society, it would be unrealistic not to expect otherwise. But since the falling-off-cliffs syndrome seems to occur repeatedly, it is good to be aware of such a situation. Participants or staff need to be aware of the possibility of such accidents and to talk and work together.
19. If all other defenses fail, it will come down
to whether an agent of the outdoor program was negligent and whether his
negligence caused the plaintiff's injuries. An agent of the program, in the
opinion of the court, should provide a reasonable standard of care. Thus it
becomes important for employees of the program when on trips or conducting
instructional events to be on the overly-cautious side and to use common
sense. If outdoor program employees keep those two points paramount in their
minds--always being overly-cautious and using common sense--it will do a great
deal to make program activities safe as well as put the program in a more
favorable position in court.
The time after an accident occurs has largely been ignored by other sources on outdoor recreational liability, but much can be done during this time to help lower the probability of becoming involved in a law suit. The information below is based partially on material prepared by The Leavitt Group, a guide and outfitter insurer,  as well as drawing from the experience of this author.
If legal action is filed against the program, the case will be turned over to an attorney appointed by the institution or state. Once the attorney is appointed, begin closely working with him/her. State attorneys deal with dozens of cases for the state, often with state clients who simply want to get out of the legal action as fast and easily as possible. It becomes imperative that the attorney know that important principles arc involved, none the least of which is the duty of participants in outdoor program trips to assume responsibilities for their actions.
Unless the attorney knows how important the case is, he/she, based on past experiences with state clients, maybe inclined toward an out-of-court settlement. When an attorney realizes that he/she is dealing with committed people and that important principles are involved, he/she may take a greater interest in the case.
Provide the attorney with as much information and
literature as possible. Explain the principles and philosophy of the program.
Discuss what procedures have been instituted in the program to minimize
liability. He/she will want to do his own research but by being provided with
various materials found in the chapter notes along with their associated
references to court cases, he/she will be ahead of the game.
 The University of Oregon papers cited below may be obtained from University of Oregon Outdoor Program, Room 23, EMU, UO, Eugene, Oregon 97403. Court documents concerning Walsh v. ISU, ASISU Outdoor Program are available from the ISU Outdoor Program, Box 8128, ISU, Pocatello, Idaho 83209. Material on other court cases listed below are available through legal libraries.
 Arthur N. Frakt, "Adventure Programming and Legal Liability," in High Adventure Leisure Pursuits and Risk Recreation, ed. Joel F. Meier, an insert in Journal of Physical Education and Recreation, April 1978, p. 25.
Don Burnett, "Legal Dimensions of Recreational Program Planning," Discussion outline of a presentation at the 1976 Regional Conference of the National Recreation and Parks Association in Billings, Montana, p. 1. Burnett was the defense attorney in a liability case involving the deaths of two participants in an Idaho desert survival program.
Edward H. Hammond, "Risk Management in Student Personnel Administration," in Student Activities Programming, October/November 1978, p. 39.
William L. Prosser, The Law of Torts, 4th ed. (St. Paul, Minnesota: West Publishing Co., 1971).
Dudley Improta, "Selected Legal Aspects of University Outdoor Programs," in Proceedings of the 1984 Conference on Outdoor Recreation, eds. John C. Miles and Ron Watters, (Pocatello, Idaho: Idaho State University/1984 Conference on Outdoor Recreation Steering Committee, 1985), p. 124. Improta refers to the complaint, Ross v. Colorado Outward Bound School, (see #11, below).
Burnett, pp. 1-2.
The basis of assumption of risk is found in Section 496, Second Restatement of Torts, paragraph 4(d). An important case is: Murphy v. Steeplechase Amusement Co., 166 N.E. 173(1929). Janna S. Rankin, "The Legal System as a Proponent of Adventure Programming," in High Adventure Leisure Pursuits and Risk Recreation, ed. Joel F. Meier, an insert in the Journal of Physical Education and Recreation, April, 1978, pp. 28-29 cites several court cases which have used this doctrine. Two sources which discuss the use of the assumption of risk defense in relation to college outdoor programs are Wyman, Tort Liability, pp. 45, 49-53; and, Soule, pp. 7-8, 12-13, both fully referenced below. Also see C.H. Lowell and J.C. Weistart, The Law of Sports (Indiana: Bob Merrill, 1979).
Walsh v. ISU, ASISU Outdoor Program, "Memorandum in Support of Motion for Summary Judgment," December, 1983.
Matthew Soule, "Tort Liability and the University of Oregon Outdoor Program," (Eugene, Oregon: University of Oregon Outdoor Program, paper, 1981), p. 8.
 "The argument that the plaintiff was "pressured" into participating was used in Ross vs. Colorado Outward Bound School, Inc., a complaint filed with the State of New York Supreme Court: County of Erie, April 13, 1978.
 Walsh vs. Idaho State University, ASISU Outdoor Program, "Memorandum Decision and Order," Sixth Judicial District, State of Idaho, January 5, 1984.
 Dean Moede, "Liability in Travel Programming," in Student Activities Programming, October/November, 1978, p. 54. Moede warns that once a program makes statements that "proper equipment" will be provided or that the trip will be "safe," the court can rule that the program did not fulfill its end of the bargain and is liable.
 Fundamental definitions and information concerning releases can be found in: Prosser, Torts, p. 440 and Second Restatement of Torts, Section 496. Some cases upholding releases include: Broderson v. Ranier Nat. Park Co. 187 Wash. 399, 60 F. 2d 234 (1934); Garrelson v. Pacific NW Ski Association, el. al. 456 F. 2d 1017 (9th Cir. 1972); Hewitt v. Miller, 521 P. 2d 244, 11 Wash. App. 72 (1974); Moss v. Fortune, 340 S.W. 2d 902 (1960). In addition both Wyman, "Tort Liability," pp. 53-59 and Soule, pp. 8-9 discuss waivers in relation to college outdoor programs.
 Richard A. Wyman, "A Memorandum Regarding the Tort Liability of Self Directing University Outdoor Wilderness Programs" (Eugene, Oregon: University of Oregon Outdoor Program, Paper, 1972), p. 46-47. Wyman was the first to identify the applicability of the "joint enterprise" or "common adventure" defense in a university outdoor program liability case. He based his arguments on 6 Am. Jur. 2d, "Associations and Clubs," section 32 and Murphy v. Hutze 27 Fed. Supp 473 (1939). Soule, pp. 15- 19 expanded greatly upon Wyman's work using Proser, Torts, Restatement of Torts and several court cases as support.
 Soule, pp. 18-19.
 Betty Van der Smissen, "Minimizing Outdoor Legal Risks," The Bulletin of the Association of College Unions-International, December 1979, p. 14.
 Tom Whittaker, "Outdoor Adventures: Worth the Risk?" in Student Activities Programming, April 1981, p. 48.
 Richard A. Wyman, "A Memorandum Regarding the Effect of In Loco Parentis Supervision upon the Tort Liability of the University and the Outdoor Program and the Feasibility of Moral and Social Supervision by the Outdoor Program" (Eugene, Oregon: University of Oregon Outdoor Program, paper, 1972), pp. 12-13. Wyman argues against becoming a guardian or parent of participants (in loco parentis) by regulating and controlling their activities. He cites Coates v. Tacoma School Dist. 55 Wash. 2d 392, 347p. 2d 1093 (1960): "liability springs from exercise or assumption of control . . . ."
 Bradshaw v. Rawlings. 612 F. 2d 135 (3rd Cir. 1979), cert. denied, 100 S. Ct. 1836 (1980) Delaware. This is an important case relevant to college outdoor programs. It dismisses in loco parentis as a function of universities as well as puts greater responsibilities on the college student.
 Valerie J. Wetzel, "Advisor Liability in Outdoor Recreation Programs," Thesis, University of Wisconsin 1983, pp. 52-59.
 Greg Blaesing, "A Continuum of Outdoor Program Delivery Systems," Student Activities Programming, August/September 1977, p.47. Also see Wyman, "Tort Liability," p. 38.
 Improta, p. 5.
 Soule, p. 10.
 Remarks at Association of College Unions Regional Conference, Pocatello, Idaho, 1971 and National Recreation and Parks Association Regional Conference, Billings, Montana, 1976.
 William Manchester, American Caesar: Douglas MacArthur, 1880-1964, (Boston: Little, Brown and Co., 1978), p. 119.
 Van der Smissen, p. 15 and Improta, p. 3.
 Information supplied to guide and outfitters insurees by Byron L. Turner, Manager, Turner-Leavitt and Co., Salt Lake City, Utah, 1984.
 Anastasia Toufexis, "No Mickey Mousing Around," Time, March 11, 1985, p. 54.
* Out-of-court settlements are common in liability cases. For instance, it may cost the institution $3,000 in attorney fees to defend a case against the outdoor program. The plaintiff's attorney may be happy to settle for $1,500. This stratagem on the part of an attorney, unfortunately, is employed frequently by many so-called "ambulance chasers." These attorneys will put in an hour or two of preparing and filing the proper forms with the anticipation that the defendant upon evaluating the cost of his defense will agree to pay a lesser out-of-court settlement.