DOCSLIB.ORG

Five Strategies for Effective Settlement Negotiations | Page 2

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Five Strategies for Effective Settlement Negotiations | Page 2 This article originally appeared in the Summer 2018 issue of From a defense point of view, the client Five Strategies usually wants to end the case as inexpen- sively as possible, but not always. The for Effective client may want to demonstrate its willing- ness to defend cases it views as meritless Settlement rather than pay a nuisance settlement. Negotiations The client’s view on litigation may change over time. For example, I conducted a settlement conference where the plaintiff’s BY HON. GERALDINE SOAT BROWN (RET.) case was not very strong, but it received a better settlement than the facts of the case Every litigator knows that many more cases would otherwise suggest. On the day of settle than go to judgment. At some point the settlement conference, the defendant in almost every lawsuit, the parties will company was in the process of being sold, discuss settlement, either on their own or and the owners wanted to eliminate any with a push from the judge. During my 16 contingent liabilities. years as a United States Magistrate Judge, I conducted more than 100 settlement con- ferences each year. I witnessed the whole 2. Identify, gather and 3. Look for settlement range of lawyer performance. Underpre- produce the most important opportunities. pared lawyers and their clients stumbled information early. Windows of opportunity for settlement into settlement conferences, often re- open at various times in a lawsuit. For a sulting in a negotiation that didn’t lead to Settlement negotiations are most effective defendant, it’s almost always worthwhile settlement, or they settled on terms they at the proverbial sweet spot, when each to ask the plaintiff’s lawyer during the found disappointing. Effective lawyers, on side has the information it believes it needs first phone call, “What is your client really the other hand, approached settlement to make a judgment about settlement but looking for in this case?” The answer to negotiations strategically and with thought- before discovery expenses allow the sunk that question will tell a lot about whether to ful preparation. costs mentality to take hold. start negotiations then or wait. Here are five strategies to maximize your As early as possible, identify the informa- Another opportunity is when the most clients’ chances of a favorable outcome. tion that would make the most difference important information has been gathered; to both your client’s and the opposing for example, when the key witnesses have party’s view of the potential risk. 1. Develop a litigation strategy been deposed. for each individual case. If the information the other side wants Yet another opportunity is at a hearing most is discoverable, it’s almost always in There is a temptation, especially in in court. Most judges will ask at a status your client’s interest to produce it before high-volume practice areas like personal hearing whether the parties have talked the settlement negotiations. A party always injury, to view a case just like any oth- settlement. Before appearing at the status assumes that withheld information is er case that has a similar fact pattern. hearing, decide with your client how you favorable to its side, and it calculates its While it’s important to apply lessons from want to use this opening: to get a settle- settlement position accordingly. A classic previous experiences, you should avoid ment conference with the judge, to start example is a defendant who argues that a a boilerplate, “this is what we always do” lawyer-to-lawyer settlement talks or to judgment would be uncollectable. I have approach. discuss the possibility of private mediation. never seen a plaintiff reduce its demand Discuss your client’s objectives candidly at on that basis without first seeing credible While you can call opposing counsel at the start of the litigation and throughout. financial information from the defendant. any time, scheduling a private mediation FIVE STRATEGIES FOR EFFECTIVE SETTLEMENT NEGOTIATIONS | PAGE 2 or judicial settlement conference requires A private mediation is completely confiden- The opening demand and offer should matching the parties’ schedules to the tial. The parties can choose the mediator tempt the other side to continue the ne- judge’s or mediator’s schedule. It’s import- and schedule a convenient time and place. gotiation. A plaintiff with an unreasonable ant to foresee and thus schedule settle- The mediator will be available for as much opening demand invites an unreasonably ment opportunities early. time as the parties need, which can be low opening offer in return. Likewise, an important in a business dispute with a num- unreasonable opening offer can make a Waiting until a summary judgment motion ber of aspects to work out. plaintiff think that significant movement on has been filed risks missing the window of its part is pointless. opportunity. A defendant that has invest- ed significant fees in discovery and the 5. Prepare carefully to Consider all the material terms necessary summary judgment motion usually wants maximize the settlement for settlement. Think about what kind of to see if that will end the case. Plaintiffs are opportunities. release the client will want and whether rarely sufficiently intimidated by a summary The choice to settle or not belongs to the there should be a confidentiality clause. If judgment motion to reduce the demand client, but it is your responsibility to make possible, send a draft of the standard terms dramatically. sure the client makes an informed choice. your client will require to opposing counsel in advance so that those terms don’t be- 4. Consider the best context for Effective lawyers inform their clients about come last-minute bargaining chips. the judge’s or mediator’s procedures, the settlement discussions. schedules for exchanging written pre-medi- Bring the real decision-maker to the nego- Settlement talks can take place in a num- ation submissions and how the session will tiation, the one who can make a deal that ber of contexts. Direct, lawyer-to-lawyer be conducted. you might not have anticipated back in the talks can be effective when the lawyers office. Negotiations develop a dynamic that have a good rapport and the necessary au- Meet in person, if possible, with the client can slip away if the mediation is adjourned thority from their clients, and when money representative who will be attending. to allow a party to get more authority. is the only (or primary) topic of negotiation. Make sure your client understands the Settlement discussions are almost certain They are not as effective when the clients alternatives if an agreement is not reached, to occur in every civil case. Effective law- want to control the negotiation or there are including a realistic budget and timeline for yers work strategically to get their clients a many variables to the settlement. getting to a judgment and the unquantifi- able costs of stress and distraction. satisfactory result. A settlement conference with a sitting judge works well when one party wants “a Your client should read the opposing day in court.” Judges, however, can give party’s submission as well as yours. Some- Hon. Geraldine Soat times it’s the first time the client has heard Brown (Ret.), served as only a limited amount of time to any par- a U.S. Magistrate Judge ticular case, and only when their calendars the case described directly from the other for the Northern District permit. Not every judge wants to conduct side’s viewpoint. of Illinois from 2000- 2016. Prior to that, she settlement discussions or has mediation A pre-mediation submission should read represented a wide range skills. The fact that a settlement confer- of parties in litigation like an opening statement to a jury—con- ence was held and whether it resulted in a and arbitration of complex construction and cise, easy to understand and confident but commercial disputes for 25 years. She can settlement will be on the docket available be reached at . not aggressively off-putting. Avoid inflam- [email protected] to the public and media. matory rhetoric and table-pounding. .
Load more

Recommended publications
  • Brief Amicus Curiae of the District Attorneys Association of the State of New York and the National District Attorneys Association in Support of Respondent
    No. 20-637 IN THE Supreme Court of the United States DARRELL HEMPHILL, Petitioner, v. NEW YORK, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK BRIEF AMICUS CURIAE OF THE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AND THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION IN SUPPORT OF RESPONDENT J. ANTHONY JORDAN CYRUS R. VANCE, JR. President District Attorney DISTRicT ATTORNEYS ASSOciATION New York County OF THE STATE OF NEW YORK HILARY HASSLER Three Columbia Place Chief of Appeals Albany, New York 12210 DAvid M. COHN* (518) 598-8968 DIANA WANG Counsel for Amicus Curiae Assistant District Attorneys District Attorneys One Hogan Place Association of the State New York, NY 10013 of New York (212) 335-4098 [email protected] Counsel for Amici Curiae (For Continuation of Appearances See Inside Cover) * Counsel of Record 306644 BILLY WEST President NATIONAL DISTRicT ATTORNEYS ASSOciATION 1400 Crystal Drive, Suite 330 Arlington, VA 22202 (703) 549-9222 Counsel for Amicus Curiae National District Attorneys Association TABLE OF CONTENTS Page TABLE OF CITED AUTHORITIES .......................... ii Interest of the Amici Curiae .......................................1 Summary of Argument ...............................................2 Argument .....................................................................3 A. As courts have long recognized, a party may, through its litigation strategy, lose the right to assert a legal claim .......................................3 B. New York’s “opening the door” rule promotes fair
    [Show full text]
  • Understanding Mass Tort Defendant Incentives for Confidential Settlements
    WORKING P A P E R Understanding Mass Tort Defendant Incentives for Confidential Settlements Lessons from Bayer’s Cerivastatin Litigation Strategy JAMES M. ANDERSON WR-617-ICJ September 2008 This product is part of the RAND Institute for Civil Justice working paper series. RAND working papers are intended to share researchers’ latest findings and to solicit additional peer review. This paper has been peer reviewed but not edited. Unless otherwise indicated, working papers can be quoted and cited without permission of the author, provided the source is clearly referred to as a working paper. RAND’s publications do not necessarily reflect the opinions of its research clients and sponsors. is a registered trademark. - iii - THE RAND INSTITUTE FOR CIVIL JUSTICE The mission of RAND Institute for Civil Justice (ICJ) is to improve private and public decisionmaking on civil legal issues by supplying policymakers and the public with the results of objective, empirically based, analytic research. ICJ facilitates change in the civil justice system by analyzing trends and outcomes, identifying and evaluating policy options, and bringing together representatives of different interests to debate alternative solutions to policy problems. ICJ builds on a long tradition of RAND research characterized by an interdisciplinary, empirical approach to public policy issues and rigorous standards of quality, objectivity, and independence. ICJ research is supported by pooled grants from corporations, trade and professional associations, and individuals; by government grants and contracts; and by private foundations. ICJ disseminates its work widely to the legal, business, and research communities and to the general public. In accordance with RAND policy, all ICJ research products are subject to peer review before publication.
    [Show full text]
  • Intellectual Pro Perty • Spring 2012
    Intellectual PROPERTY • Spring 2012 Special Advertising Section OUTSIDE PERSPECTIVES IP Litigation — The Pursuit Of Business Objectives By Other Means1 THE HALLMARK OF A SUCCESSFUL CLIENT-COUNSEL your business objectives. In cases where the exposure is pri- relationship is understanding the client’s business objectives, marily monetary, such as the defense of significant NPE claims, and then crafting a strategy that uses the legal means to pursue that calculus is different. In such cases, business objectives and advance those objectives. in the first instance must account for the balance between the IP litigation must be a means cost of litigation and discouragement of future claims, and the to an end and is not an “end” end game business objective may or may not involve going in itself. Business objectives to trial. Only by first understanding business objectives can Latham & Watkins’ IP litigation practice should therefore define the an appropriate litigation strategy be defined. One-size-fits-all operates in collaborative and cohesive strategic objectives in any IP approaches to litigation should be rejected in favor of a busi- teams and is distinguished by having many first chair trial attorneys familiar litigation. Crafting a success- ness-minded approach to IP litigation solutions. with the key IP disciplines, venues and ful litigation strategy requires technologies. For example, partners Ron Shulman, Larry Gotts and Max Grant a thorough understanding Maximize Leverage: (pictured) have collectively tried more of the critical elements of a The strength of a legal position, and its utility in achieving a than 40 patent cases to verdict as lead counsel and recovered more than $1.3 case, its interrelationship to business objective, can be determined by the manner in which billion for patentees.
    [Show full text]
  • The Strategic Use of Public and Private Litigation in Antitrust As Business Strategy
    University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 3-2012 The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy D. Daniel Sokol University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Antitrust and Trade Regulation Commons, Litigation Commons, and the Public Law and Legal Theory Commons Recommended Citation D. Daniel Sokol, Strategic Use of Public and Private Litigation in Antitrust as Business Strategy, 85 S. Cal. L. Rev. 689 (2012), available at http://scholarship.law.ufl.edu/facultypub/320 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. THE STRATEGIC USE OF PUBLIC AND PRIVATE LITIGATION IN ANTITRUST AS BUSINESS STRATEGY D. DANIEL SOKOL I. INTRODUCTION One understudied area of the formative period of antitrust and of Standard Oil's conduct during this period is in the use and nature of antitrust private claims against Standard Oil. In contemporary antitrust, the ratio of private to government brought cases is ten to one.' In contrast, one hundred years ago government cases constituted nearly all antitrust cases,2 and many of such cases were state cases.3 On the hundredth anniversary of the Standard Oil decision,' the present Article uses a discussion of the antitrust private actions against Standard Oil prior to the company's court- ordered break up in 1911 as a starting point for a broader discussion about the interaction between public and private rights of action in antitrust in the modern era.
    [Show full text]
  • Observations on the Rise of the Appellate Litigator
    Observations on the Rise of the Appellate Litigator Thomas G. Hungar and Nikesh Jindal* I. INTRODUCTION........................................................................511 II. THE EMERGENCE OF A PRIVATE APPELLATE BAR ...................512 III. The Reasons Behind the Development of a Private Appellate Bar..........................................................................517 A. Appellate Practices as a Response to Modern Law Firm Economics ..............................................................518 B. Increasing Sophistication Among Clients About the Need for High-Quality Appellate Representation ...........523 C. The Increasing Stakes of Civil Litigation........................525 D. A Changing Supreme Court ............................................527 IV. SKILLS OF AN EFFECTIVE APPELLATE LAWYER.......................529 V. CONCLUSION ...........................................................................536 I. INTRODUCTION Over the last few decades, there has been a noticeable increase in the visibility and prominence of appellate litigators in the private bar. Most of the attention has focused on Supreme Court advocacy, where certain private law firms and lawyers have developed reputations for specialized expertise and experience in 1 briefing and arguing cases before the Court, but the phenomenon extends to other federal and state court appeals as well. The practice of law as a whole is becoming increasingly specialized, and the trend in appellate litigation is no exception, although it appears to be a more recent occurrence than the growth of substantive speciali- * Thomas G. Hungar is a partner at Gibson, Dunn & Crutcher LLP and Co- Chair of the firm’s Appellate and Constitutional Law Practice Group. He previously served as Deputy Solicitor General of the United States. Nikesh Jindal is an associate at Gibson, Dunn & Crutcher LLP and a member of the firm’s Litigation Department and of the Administrative Law and Regulatory and White Collar Defense and Investigations Practice Groups.
    [Show full text]
  • Jewish Ngos, Human Rights, and Public Advocacy: a Comparative Inquiry
    www.jcpa.org 6/10/2009 Jewish NGOs, Human Rights, and … Jewish Political Studies Review Visit our new website: Institute for Global Jewish Affairs Jewish Political Studies Review 11:3-4 (Fall 1999) Jewish NGOs, Human Rights, and Public Advocacy: A Comparative Inquiry Irwin Cotler This article is an inquiry into the contrasting principles and perspectives that underlie the differing character of human rights advocacy of Jewish NGOs in the U.S. and Canada. The author's underlying thesis is that their differing public advocacy (of religious human rights) is reflective not only of the different legal cultures in which the Jewish NGOs reside, but of the different principles which the NGOs espouse. Following an introduction into the typology of Jewish NGOs, and the nature of religious human rights, the article is organized around four themes: first, the historical contribution to the development of international human rights law in the matter of religious human rights and how this legacy has shaped contemporary public advocacy; second, the different contributions - inspired by a differing ideology and litigation strategy - by American and Canadian Jewish NGOs to the development of constitutional law in their respective countries in the matter of religious human rights; third, the different legal cultures - and different Jewish sensibilities - which anchor the work of these NGOs as reflected in two dramatically different case studies of public advocacy - in religion and state and hate speech issues; www.jcpa.org/cjc/cjc-cotler-f99.htm 1/37 www.jcpa.org 6/10/2009 Jewish NGOs, Human Rights, and … and finally, the "salience" of religious human rights in the panoply of human rights, and their importance - however different their advocacy - to the agenda of Jewish NGOs.
    [Show full text]
  • Impact Litigation
    IMPACT LITIGATION: AN INTRODUCTORY GUIDE This is a publication of the Center for Human Rights & Humanitarian Law at American University College of Law — authored by Faculty Directory of the Center for Human Rights & Humanitarian Law Macarena Sáez, and edited and designed by Center Program Coordinator Anastassia Fagan. Published: 2016 TABLE OF CONTENTS MESSAGE FROM DEAN CLAUDIO GROSSMAN...............................................................................................i WHAT IS IMPACT LITIGATION?...........................................................................................................................1 PLANNED AND UNPLANNED IMPACT LITIGATION.......................................................................................2 CHOOSING THE CAUSE AND CHOOSING THE CLIENT..................................................................................3 CHOOSING THE RIGHT FORUM...........................................................................................................................4 ADVANCING LITIGATION THROUGH OTHER MECHANISMS......................................................................6 LAW SCHOOL INVOLVEMENT IN IMPACT LITIGATION................................................................................6 IMPACT LITIGATION AT AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW..........................7 LORENZO ENRIQUE COPELLO CASTILLO Y OTROS (CUBA): CASE 12.477, INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, 2006............................................................8 USÓN RAMÍREZ V.
    [Show full text]
  • Seeking Social Change in the Courts: Tools for Strategic Advocacy
    Seeking Social Change in the Courts Tools for Strategic Advocacy women’s worldwide Methodology Workbook L I N K Seeking Social Change in the Courts Tools for Strategic Advocacy Mónica Roa with Barbara Klugman women’s worldwide Methodology Workbook L I N K The judiciary has the power to permit equality to grow and flourish to meet the legitimate demands and aspirations of ... the world’s population. They also have the power to deny it Kathleen Mahoney Contents Chapter 1: Introduction .......................................................................................... 10 1.1. What Is Social Change for Justice and How Do You Achieve It ................................... 12 Changing Norms, Values, and Behaviors ................................................................ 16 Changing and Implementing Laws and Policies ....................................................... 17 1.2. Considering the Courts as Sites for Social Change ................................................... 18 1.3. Women’s Link Worldwide’s Strategic Approach ........................................................ 21 Mapping ............................................................................................................ 22 Prospective Analysis ............................................................................................ 23 Lateral Thinking ................................................................................................. 23 Chapter 2: Considering Litigation as an Advocacy Tool ..........................................
    [Show full text]
  • Litigation As a Legislative Strategy - Some Preliminary Thoughts on a New Research Project
    DePaul Law Review Volume 51 Issue 2 Winter 2001: Symposium - The Changing Landscape of the Practice, Financing Article 12 and Ethics of Civil Litigation in the Wake of the Tobacco Wars The New Social Policy Torts: Litigation as a Legislative Strategy - Some Preliminary Thoughts on a New Research Project Deborah R. Hensler Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Deborah R. Hensler, The New Social Policy Torts: Litigation as a Legislative Strategy - Some Preliminary Thoughts on a New Research Project, 51 DePaul L. Rev. 493 (2001) Available at: https://via.library.depaul.edu/law-review/vol51/iss2/12 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. THE NEW SOCIAL POLICY TORTS: LITIGATION AS A LEGISLATIVE STRATEGY SOME PRELIMINARY THOUGHTS ON A NEW RESEARCH PROJECT Deborah R. Hensler* INTRODUCTION On June 20, 1997, Mississippi Attorney General Mike Moore ap- peared before a nationwide television audience to announce that to- bacco companies had agreed to pay $368.5 billion to smokers and states to cover medical costs for smoking-related illnesses.' The set- tlement was unprecedented. Intended to resolve a raft of private class action lawsuits2 and state attorneys' general suits, the settlement, re- quired Congress to validate agreements the lawyers had made to pro- hibit any
    [Show full text]
  • Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging
    Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging by Howard Kislowicz A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Howard Kislowicz 2013 Social Processes in Canadian Religious Freedom Litigation: Plural Laws, Multicultural Communications, and Civic Belonging: Howard Kislowicz Doctor of Juridical Science Faculty of Law University of Toronto 2013 Abstract Though there is significant academic interest in the law of religious freedom in Canada, there has been little research into the experiences of participants in religious freedom litigation. Based on a qualitative analysis of participant interviews and legal documents in three decisions of the Supreme Court of Canada, this dissertation explores the social processes at play in that litigation. At issue in the three cases were, respectively, (1) the right of Jewish condominium co-owners to install ritual huts (succoth) on their balconies; (2) the right of a Sikh student to wear a ceremonial dagger (kirpan) in a public high school; and (3) the right of a Hutterite group to be exempted from the photo requirement on driver’s licences for religious reasons. This dissertation adds to the existing academic commentary by looking beyond the judicial decisions and incorporating firsthand accounts of lawyers, litigants, and expert witnesses in these cases. The substantive analysis is divided in three sections. First, the dissertation examines themes of overlapping legal systems in participant narratives. Litigants understood themselves to be subjects of both state and religious laws, and the particular interactions between these legal systems help refine theories of legal pluralism.
    [Show full text]
  • Patent Litigation: Mapping a Global Strategy
    Resource ID: 7-521-8726 Patent Litigation: Mapping a Global Strategy JOSEPH M. CASINO AND MICHAEL J. KASDAN, WIGGIN AND DANA LLP, WITH PRACTICAL LAW INTELLECTUAL PROPERTY & TECHNOLOGY Search the Resource ID numbers in blue on Westlaw for more. A Practice Note discussing a global approach This Note also uses recent global patent litigation disputes to show the array of strategies and permutations that arise when to patent litigation. It outlines key strategic conducting litigation simultaneously in courts around the world. considerations for patentees seeking to file While the Apple/Samsung dispute is fairly unique in terms of its scale and stakes, it is far from the first of its kind. Other notable patent infringement suits against an alleged global patent battles over the past decade discussed in this Note infringer in more than one jurisdiction, in include: particular, the differences between key The Apple/HTC dispute, initiated in 2010 concerning smartphones and mobile devices. jurisdictions in timing, procedure, and The Sony/LG dispute, initiated in 2010 concerning mobile phones substantive patent law. and game consoles. The Nokia/Apple dispute, initiated in 2009 concerning mobile phones. In the past decade, US and non-US based companies have adopted The Sharp/Samsung dispute, initiated in 2007 concerning LCD comprehensive global patent litigation strategies in “bet-the- televisions. company” competitor patent clashes. Patent infringement suits and countersuits are no longer being initiated solely in US district courts TREND TOWARD GLOBAL PATENT LITIGATION or the US International Trade Commission (ITC). Instead, they are also simultaneously being brought in forums across Europe and Asia.
    [Show full text]
  • Litigation Strategy on the Digital Welfare State
    Contents 1. Introduction What is the purpose of this strategy and how was it developed? 1. Introduction 3 Since early 2019, the Digital Freedom Fund (DFF) has been discussing with litigators, activists and technologists how the digital welfare state impacts human rights. What 2. Terms and definitions 4 is the digital welfare state?1 What are the main challenges? How can stakeholders use strategic litigation as an instrument to help shape social welfare policies and practic- 3. Background 5 es to better respect and protect human rights?2 In these conversations, stakeholders shared dream cases and explored desired objectives of litigation. In the first half of 2020, DFF has, in collaboration with De Argumentenfabriek (The Argumentation Fac- 4. Vision 6 tory), distilled these conversations into the foundation of a litigation strategy on the digital welfare state. The current document is the outcome of this process. 5. Objectives and goals 8 This joint litigation strategy of DFF and its stakeholders lays out a vision of strategic litigation on the digital welfare state. The vision consists of general principles that can help stakeholders build cases by identifying potential human rights violations. The principles also help them think strategically about whether cases have the potential to contribute to the desired change: advancing the equality and human dignity of those in need of social protection, while at the same time protecting the digital rights of all. This strategy also lays out more concrete – short term – litigation objectives around five thematic focus areas: entitlement, human centred technology, equality, data and privacy protection, and redress. Like the vision, these objectives and goals are based on shared priorities of stakeholders in this context.
    [Show full text]