2 PerspectivesJuly 18, 2009

Ambiguities in Rule 68: Why Are They Relevant to You?

If you see an ambiguity in a rule, is it your job to fix it? Maybe it is, maybe it isn’t, but one thing’s for sure: until the rule changes, you have to deal with it as it is. Like it or not, uncertainty creates risk as well as opportunities — for you and for the other side. Whether you react to either is up to you.

This isn’t the Rule 68 Blog (despite our introduction to Rule 68 and an entire series on the rule already), but a recent article in the Minnesota Law Review merits a return to one of our favorite topics. Danielle M. Shelton’s recent article, “Rewriting Rule 68: Realizing the Benefits of the Federal Settlement Rule by Injecting Certainty into Offers of Judgment,” suggests how we can fix Rule 68 like our Civil Procedure professor might have wanted — but along the way it thoroughly explores uncertainties created by Rule 68 that litigators ignore at their peril.

Can Rule 68’s Ambiguities Drive Settlements?

Professor Shelton makes a few critical points about the uncertainties created by Rule 68 — and why lawyers for both sides should care: More…

Categories: Rule 68, Settlement, Tactics

8 PerspectivesJuly 3, 2009

Advanced Decision Tree Analysis in Litigation: An Interview With Marc Victor, Part I

A .pdf version of this advanced decision tree is available here.

Decision Tree Analysis isn’t new to litigation, and it isn’t new to this site either — we discussed the basics and more a few months ago.  But when you’re ready for an advanced take on the subject, where do you turn?  All roads lead to Marc B. Victor, Esq., who pioneered the application of decision tree analysis to litigation in the 1970s.

Through his company, Litigation Risk Analysis, Inc., Marc has taught decision tree analysis in the litigation context to over 10,000 senior legal professionals, some of whom no doubt had a hand in the American College of Civil Trial Mediators awarding Marc their Education Award of Excellence in 2003.  Marc was kind enough to guide me a bit when we began our series on decision trees a few months ago, and I have wanted to flesh out some of the details with him since those initial discussions.  The Q&A below is the result of our recent follow-up interview.

How did you first put together litigation management and the decision tree concept?

It was truly fortuitous.  I was a joint JD/MBA student at Stanford in the mid-1970s and had a summer job for a company bringing an antitrust suit against IBM.  I happened to have lunch with one of our lawyers the same day the president had asked him if $10 million would be a reasonable settlement.  As our lawyer walked me through what might happen if we went to trial — “if More…

Categories: Decision Trees, Negotiation, Settlement

Add Your PerspectiveJune 26, 2009

UDR: An Introduction to Unconventional Dispute Resolution

As I have said before, if you really want to cut your litigation costs, step one is to have less litigation.  Step two, however, is just as important:  actively manage what’s left.  This post will explore a great way to do both — UDR.

We’re at a point where lawyers who are effective at getting cases settled are often thought to be afraid of trial, yet real trial lawyers often forget that their clients have more important business than litigation.  Which approach will you choose as your next case begins?  With Unconventional Dispute Resolution you can integrate both, so you don’t have to choose either — until the choice is actually yours.

What is UDR?

So what is UDR?  There’s no single element of Unconventional Dispute Resolution that’s truly new, but UDR combines 7 component parts in a way I haven’t seen before.  These elements — each of which is critical to the success of the whole — include:

1. Early Case Assessment
2. Aligned Fee Agreements More…

Categories: ADR, ECA, Miscellaneous, Settlement

7 PerspectivesFebruary 13, 2009

Settlement Advice: Avoid the Assembly Line

The other day I wrote a post about trust. It was a simple post, really. I recounted a story about a recent tire purchase where I asked for four new tires, and my service rep convinced me I only needed three. I trust her more now than I did before, and to most this would hardly be a controversial result. It took a lawyer at Legal OnRamp to turn this ordinary lesson in trust into much more.

An Unexpected Lesson at Legal OnRamp

Soon after publishing my post I stumbled across a reply on Legal OnRamp, More…

Categories: Communication, Fundamentals, Settlement