Trials are very costly—both in terms of expense and the emotional exhaustion that comes from the weeks of preparation and the long days spent in the courthouse. Although most clients are keenly aware that a lawsuit settlement avoids the financial challenges of trial, most do not fully recognize the time-and-energy-value settlements can bring for an issue to be resolved—early and completely.
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I’ve been a commercial litigator for 10 years and nothing makes me happier than trying a case and winning. But going to trial is not always the right thing for a client. For starters, trials come with significant uncertainty either from a judge’s ruling on evidentiary issues or the jury’s final determination. A settlement, however, affords a client a considerable degree of control in settling the dispute.
While litigators are well versed in settlement discussions, the best settlements come from clients who are actively engaged in the process. Consider these questions when discussing settlement options with your attorney.
1. What are your goals?
This sounds obvious, but work with your counsel to write down, and perhaps even prioritize in a list, your goals for settling a dispute. What will make you feel like the settlement was successful? Be honest and realistic with yourself. This will help inform both you and your counsel about what you need for a positive outcome.
2. Is there information you are missing from the other side?
Frequently, settlement discussions begin after the close of discovery because, by then, lawyers and their clients feel like both sides have “shown their cards.” However, discovery can be quite expensive, so more often, clients are looking to settle a dispute early. Consider if there is information you need from the opposing side before any settlement discussion would be productive. For example, if the opposing side is demanding money, remind the opposing side that they should give you whatever information you need before you can be willing to pay.
3. What are the opposing party’s goals?
Carefully consider whether the dispute is driven primarily by money or by emotion. Examine with counsel whether there are non-monetary overtures you can make that might decrease the monetary exposure. For example, would an apology combined with an offer of judgment, which concedes liability publicly and agrees to modest damages resolve the case? Along that same vein, does the opposing side just want this dispute to show others they are serious about exercising their contractual rights, but may agree to a walk-away settlement conditioned on strict confidentiality?
4. What are the holes in your own case?
Your counsel should be very familiar with any legal or factual issues that may be problematic for your side. Make them tell you the weaknesses—directly and candidly. Those issues will be present during a trial or arbitration if you do not settle beforehand, so it is critical you understand and appreciate them during any settlement negotiation. If you are in a formal mediation with a mediator, that is an excellent time to also solicit your side’s strengths and weaknesses from the third party neutral mediator.
5. What are opposing lawyers really like?
It is rare, if ever, that an entire case has settled on email or letter correspondence alone. Encourage your counsel to affirmatively reach out to the other side to discuss the issues, even informally. Lawyers can be vitriolic behind a keyboard, but it is hard to be ruthless when you are actually biting a sandwich. And contrary to popular belief, lawyers being amicable with each other actively resolves disputes—quicker and cheaper. If the opposing attorney is a jerk, it only makes you want to dig your heels in further.
Author: Emily Ward litigates high-stakes cases for Fennemore plaintiffs and defendants in federal and state courts across the country. An outside-of-the-box thinker who pays close attention to details and consistently runs matters to the ground on behalf of her clients, this up-and-coming business litigation attorney has the unique ability to master diverse subject matters, ranging from constitutional issues, multi level marketing, landfill and solid waste management, and commercial real estate. Emily’s success has earned her recognition as a Super Lawyers® Rising Star each year since 2016.
