Trials are very costly — in terms of both 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 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.
Nothing makes most litigation attorneys 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 from either 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. A business owner should consider these questions when discussing settlement options with their attorney.
What are the goals? This sounds obvious, but clients should work with their counsel to physically write down and prioritize goals for settling a dispute. What will make this a successful settlement? It’s important to be honest and realistic. This introspection will help inform what is needed for a positive outcome.
Is there information 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 oftentimes clients are looking to settle a dispute early. One thing to consider is whether there is information needed from the opposing side before any settlement discussion would be productive. If they are willing to share, a reasonable settlement could be reached quicker.
What are the opposing party’s goals? It’s important to carefully evaluate whether the dispute is driven primarily by money or by emotion. Clients can examine with counsel whether there are non-monetary overtures that can be made to decrease any 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 their lawsuit to show others they are serious about exercising their contractual rights? Would a nominal, confidential settlement end the matter?
What are the holes in the case? Counsel should be very familiar with any legal or factual issues that may be weaknesses. Clients can, therefore, ask them to explain the weaknesses — directly and candidly. Those issues will likely be present during a trial. When considering settlement, it’s important to factor in those weaknesses. If settlement is not the right option yet, clients may consider asking counsel to seek mediation with opposing counsel. During that mediation, a more objective view of each side’s strengths and weaknesses may become apparent from the third-party neutral mediator.
What are opposing lawyers really like? It is rare, if ever, that an entire case settles based on email or letter correspondence alone. Clients should encourage 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 for most lawyers to be ruthless when they are sharing an informal lunch with opposing counsel. Contrary to popular belief, lawyers who are amicable with each other actively resolve disputes quicker and cheaper.
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 to multilevel marketing, landfill and solid waste management, and commercial real estate. Ward’s success has earned her recognition as a Super Lawyers® Rising Star each year since 2016.
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