Journal of Dispute Resolution Volume 1988 Issue Article 3 1988 Effective Lawyering in Judicially Hosted Settlement Conferences Wayne D. Brazil Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Wayne D. Brazil, Effective Lawyering in Judicially Hosted Settlement Conferences, 1988 J. Disp. Resol. (1988) Available at: https://scholarship.law.missouri.edu/jdr/vol1988/iss/3 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Brazil: Brazil: Effective Lawyering in Judicially Hosted Settlement Conferences EFFECTIVE LAWYERING IN JUDICIALLY HOSTED SETTLEMENT CONFERENCES WAYNE D. BRAZIL* I. INTRODUCTION ......................................... 2 II. WHOM AND WHAT TO BRING TO THE CONFERENCE .......... 2 1I1. THE PRINCIPAL TARGETS OF PERSUASION ................... 3 IV. THE PROS AND CONS OF DIFFERENT SETTLEMENT CONFERENCE FO R M A TS .... ........ .... .......... .............. 4 V. KEY CONCEPTUAL PREPARATION JUST BEFORE THE CONFERENCE 9 VI. THE MOST EFFECTIVE TONE OR STYLE ................... 11 VII. THE GLADIATORS JUST GET IN THE WAY: THE MYTH OF THE EFFECTIVENESS OF "GOOD GuY-BAD GUY" TEAMS ......... 16 VIII. THE ANALYSIS STAGE ........... ........ 17 IX. THE NEGOTIATION STAGE.. ....... 23 A. Calculated concessions to create momentum ....... 24 B. Should counsel ask the judge to articulate his assessments of the settlement value of the case before they put their first figures on the table? . ...... ...... 28 C. Putting your first number on the table at the conference 29 D. How to adjust numbers and respond to judges' probes... 32 E. Negotiations involving multiple defendants ............ 35 F. Strategies against multiple plaintiffs . .. 38 G. Alternatives or supplements to straight cash payments 38 H. An Important Caveat: Lying in order to placate an opponent is ill-advised. 42 I. Steps to reduce distrust 43 J. Procedural tools for breaking logjams ............ 44 K. The move of last resort: Going to your client's real bottom line ................ ........ ................ ..... 4 8 X. FROM AGREEMENT IN PRINCIPLE TO AGREEMENT IN FACT: STEPS TO REDUCE THE ODDS OF RUPTURE ....................... 50 XI. CONCLUSION .. ............... 54 * U.S. Magistrate, U.S. District Court, San Francisco, California. Formerly Pro- fessor of Law at Hastings College of Law, University of California, San Francisco. This article is adapted from Chapter 7 of Magistrate Brazil's recent book, EFFECTIVE APPROACHES TO SETTLEMENT: A HANDBOOK FOR LAWYERS AND JUDGES (1988). Published by University of Missouri School of Law Scholarship Repository, 1988 1 Journal of Dispute Resolution, Vol. 1988, Iss. [1988], Art. 3 2 JOURNAL OF DISPUTE RESOLUTION [Vol. 1988 I. INTRODUCTION The purpose of this article is to describe in detail the most effective ap- proaches and techniques that I have seen lawyers use in settlement confer- ences. Having hosted hundreds of negotiations, I have seen many different lawyering styles. In the pages that follow, I share with interested litigators my ideas (unconfirmed by scientific tests) about what works in the settlement dy- namic and what does not. I write informally; the "you" that I address so often are the litigators I hope to reach. After discussing briefly what and whom you should bring to a settlement conference, and reminding you about who your principal targets are, I discuss the pros and cons of different ways settlement conferences can be structured. Then the focus shifts to the substance of the conference itself, which I divide into three principal dimensions: (1) the tone you attempt to set and the style you adopt, (2) the analysis dimension, and (3) the negotiation dimension. At the outset it is important to emphasize a theme that runs through much of this article: the way counsel behaves during the conference can dra- matically affect how the judge and other counsel handle themselves in the ne- gotiation process. The way the lawyers approach the conference can determine what role the judge will play. Lawyers have the capacity, to an extent they probably do not appreciate, to fix how much and what kind of energy the court devotes to the settlement process. Similarly, the approach or style one lawyer adopts can affect the approach or style of opposing counsel. Because counsel tend to "respond in kind" in this setting, lawyers have considerable influence over the tone that dominates the conference. Throughout this article I point to examples of how one lawyer's conduct and choices are likely to affect the re- sponses that come from his opponent. Finally, toward the end of this article I suggest strategies for breaking negotiation logjams and for maximizing the odds of reaching closure. II. WHOM AND WHAT TO BRING TO THE CONFERENCE You should be sure to bring to the conference: Your client, i.e., someone who has full authority to resolve the litigation and to make any kind of commitment that might become part of a settlement package. When it is not possible to have your client present, he or she must be available by phone. Key documents, including contracts, responses to discovery requests, marked pages from deposition transcripts, medical records, reports and bills, proof of wage loss, other evidence supporting special damages, photographs, and reports by specially retained experts. Pivotal legal authority, e.g., copies of cases or statutes on which you rely if the legal principles in them are disputed in the suit and not widely recognized. In appropriate cases, you also might bring to the conference a key wit- https://scholarship.law.missouri.edu/jdr/vol1988/iss/3 2 Brazil: Brazil: Effective Lawyering in Judicially Hosted Settlement Conferences 19881 EFFECTIVE LAWYERING ness. If the case turns on the credibility of one percipient witness, you might want to give the settlement judge an opportunity to talk to that witness so that he or she can form a judgment about how persuasive the witness is likely to be at trial. There also are situations in which it is wise to bring to settlement conferences actuaries or accountants or experts from other fields who might help the judge and the parties either analyze liability questions or develop cre- ative components of settlement packages. In an employment case, for example, it might be productive to bring a personnel specialist who is unconnected with the parties but who could suggest career avenues plaintiff might want to pur- sue or who could lay out the costs of equipping the plaintiff to enter a new line of work. Just as there may be people whom it is especially important to bring to the conference, there may also be people whom it is especially important to leave home. The generalization you should use to identify the people in the latter category is easy to articulate but difficult to apply: you should leave at home the people with fragile egos that might be threatened either by a frank discussion of the liability questions or by consideration of some of the terms that might make up the settlement agreement. People who fall in this category could include an officer or employee whose decisions or conduct gave rise to the litigation, a claims adjuster or lawyer who feels the need to defend earlier (and now clearly unreliable) evaluations of the case, or a consultant or coun- selor whose advice resulted in decisions or conduct that the lawsuit challenges. Of course, there will be situations where it is impossible to both leave such people at home and have your client present at the conference (because they are one and the same). In these situations, your best course of action is to try to keep the person with the sensitive ego out of the portions of the conference that include direct discussion of the defensibility of the underlying conduct. I. THE PRINCIPAL TARGETS OF PERSUASION When deciding on an overall strategy for a given settlement conference, and when responding to specific developments during the course of negotia- tions, you should keep as close to the front of your mind as possible a very important fact: your persuasive efforts cannot be focused on just one target, but must be designed to reach at least three and sometimes four different people: (1) opposing counsel, (2) the opposing party, (3) the judge who is hosting the conference, and, (4) in some cases, your own client. In subsequent sections of this article I suggest ways to maximize the like- lihood that you will reach, and persuade, the persons in these categories. At this juncture it will suffice to emphasize a point about your judicial host: one of your primary objectives in a settlement conference should be to convert the judge into an ally, to so persuade him of the reasonableness of your client's Published by University of Missouri School of Law Scholarship Repository, 1988 3 Journal of Dispute Resolution, Vol. 1988, Iss. [1988], Art. 3 4 JOURNAL OF DISPUTE RESOLUTION [Vol. 1988 position that he becomes not just a facilitator of communication, but an asser- tive advocate of a solution that fits your client's needs. Much of what I suggest in this article about how to conduct yourself in a settlement conference is di- rected toward this end. IV. THE PROS AND CONS OF DIFFERENT SETTLEMENT CONFERENCE FORMATS Despite the fact that the judicial host is most likely to decide what format any given settlement conference will have, it is a mistake for lawyers to devote no thought to how the structure of the conference might affect its content. It also is a mistake for lawyers always to accept whatever format the judge sug- gests. Instead, lawyers should determine which of the available structures is likely to contribute most to prospects for a successful conference, then courte- ously suggest that structure to the judicial host.