This article originally appeared in the Summer 2018 issue of

From a 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 . At some point the settlement conference, the defendant in almost every , 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 . During my 16 contingent liabilities. years as a United States 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 performance. Underpre- produce the most important opportunities. pared 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 . Most 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 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 - 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 —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.