1 PerspectiveDecember 28, 2008

Early Case Assessments: An Updated Index to Settlement Perspectives’ ECA Posts

“If you and the other side value the case differently, at least one of you is wrong.”  Settlement Perspectives’ Early Case Assessment series started with this premise, and there’s more on this topic to come.

This is a quick index to Early Case Assessment posts on Settlement Perspectives so you can find them all in one place — and we’ll be sure to keep this list updated as new ECA content arrives.

Early Case Assessment Posts:  An Index

ECA posts on Settlement Perspectives include the following:

• Easier Said Than Done: Early Case Assessments Part I: The Definition of Early Case Assessment — and a brief discussion of what it’s not.
• The Early Case Assessment Checklist: Early Case Assessments Part II: The 15 items on the Early Case Assessment Checklist, grouped by category to keep them organized.
• Putting the Checklist into Action: Early Case Assessments Part III: Four important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.
• Better Settlements from Better Information: Early Case Assessments IV: Why, if you plan to settle your case, a thorough ECA will be worth the investment it will require.
• Better Docket Management Through Early Case Assessments: ECAs Part V:  More than a few reasons why ECA is a good idea even if you don’t plan to settle.
• The Partner Focus Group:  An Easy Way to Get the Extra Perspective You Need:  Because sometimes you need another perspective.
• CPR Publishes New Early Case Assessment Guidelines:  Additional resources to assist you with your ECA.
• Early Case Assessments:  More on the ECA Toolkit from PD Villareal:  Excerpts from an interview with one of the pioneers in Early Case Assessment.

Happy Holidays to you and yours.

Categories: ECA, Fundamentals, Selected Posts, Settlement

2 PerspectivesSeptember 30, 2008

Rule 68 and Offers of Judgment, Part III: 9 Situations Where They Just Might Work

Following my posts about how Rule 68 works in Part I of this series and why it works in Part II, I had spirited discussions with a few of you about when offers of judgment can be most effectively used.  This post will highlight 9 situations where Rule 68 offers are more likely than most to be successful.  As always, this is a nonexhaustive list based on my own experience; I welcome additional situations you’ve witnessed.

Nine cases and situations where I believe Rule 68 offers are the most likely to be successful include:

(i) Hindsight Avoiders. I have litigated against several trustees, and they know their judgment will someday be second-guessed — with 20/20 hindsight — if they lose at trial.  Trustees and other fiduciary representatives are a bit different than individual plaintiffs who can “bet it all” on a bad case; like it or not, trustees may someday have to answer the question:  “The Rule 68 offer was unconditional; how could you have left it on the table?”  Or:  “How could you not have understood how bad our case was when you had an offer of judgment in front of you?”  Go ahead and use Rule 68 to make it hard for them to walk away.

(ii) The Bird in the Hand. Cases with natural breaks in damages are ripe for Rule 68 offers.  Cases with contractual damage caps and cases where a back More…

Categories: Mediation, Rule 68, Selected Posts, Settlement, Strategy, Tactics

1 PerspectiveSeptember 16, 2008

Why We Can’t Just “Cut to the Chase”: Acceptance Time in Negotiation

Not so long ago I was in Cleveland mediating a fairly complex commercial dispute.  My client had a plane to catch at the end of the day but, as is often the case, he really wanted a good deal.  Based on each side’s positions and the “dance” to that point, we both knew where the case would probably settle.  At about 3:00 in the afternoon he looked at his watch and asked a question most of us have heard before:  “Why don’t we just cut to the chase, offer what it’s going to take to settle this thing, and get out of here?”

“Cut to the Chase” Is Not a Negotiation Term

I recently learned that Hollywood, rather than frustrated negotiators, brought us the phrase “cut to the chase.”  Like today, good movies from the early days of talking pictures frequently ended with a chase scene.  “Obligatory romantic storylines” that weren’t exactly the best part of the movie often preceded the chase, according to The Phrase Finder.  Unfortunately, getting from the obligatory romance to the end wasn’t always smooth — Wikipedia tells us that, at some point, “an inexpert screenwriter or director, unsure how to get to the climax, would just make an abrupt transition, known as a cut.”

The Chase Scene Doesn’t Work Without the Rest of the Movie

While experienced negotiators may realize it a bit sooner than everyone else, at some point we all begin to see where our deal is headed. More…

Categories: Fundamentals, Mediation, Negotiation, Selected Posts, Settlement

Add Your PerspectiveSeptember 9, 2008

Why It May Be a Bad Idea to “Send them a Message”

“Our next move needs to make it clear that we mean business.”  I have heard that line (and others like it) before, and you have, too.  But a concept in a popular business book recently helped me understand why this isn’t the great approach I once thought it was.  In Made to Stick:  Why Some Ideas Survive and Others Die, authors Chip Heath and Dan Heath explain how the “The Curse of Knowledge” impacts how we communicate.  With the help of their book, I now see how some negotiations succeed while others fail.

Do We Outsmart Ourselves?

At some point in almost every negotiation we are tempted to use our actions to send a message – a customer hoping to “get tough” demands the supplier come to her office; a home purchaser makes a “low ball” offer to signal that the house is priced too high; and a policyholder reduces his claim More…

Categories: Communication, Negotiation, Selected Posts, Theory