1 PerspectiveNovember 7, 2008

Better Settlements From Better Information: Early Case Assessments IV

“You can pay them, or you can pay me.  But don’t pay us both.”  My friend Robert Manley told me that as we sent him a new lawsuit a few years ago, and his quote sums up one of Early Case Assessments’ biggest benefits.  As we have discussed before, getting your ECA done — gathering the information required by the Early Case Assessment Checklist discussed in Part II and Part III of this series — requires an up-front investment.  This post will tell you why, if you plan to settle your case, a thorough Early Case Assessment will be worth that investment.

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Categories: ECA, Miscellaneous, Negotiation, Settlement, Strategy, Tactics

Add Your PerspectiveOctober 17, 2008

How Do You Settle Halfway? Settlement Structures Part II

In You Can Win by Settling Halfway:  Settlement Structures Part I, we discussed when it might pay to settle halfway — when you might resolve parts of a dispute to “streamline the matter, limit expenses, and refocus the parties on resolving what’s left.”  While Part I outlined several high-level examples of how it works in theory, here’s a successful example to demonstrate how settling halfway can work for you.

What’s Really in Dispute?

I got called into a dispute between my client at the time and a recently departed executive.  The former executive disagreed with the compensation he was paid as he left.  Like many claims involving former execs, the stakes were high, and the emotions ran higher.  Both sides wanted to prove that they were right, and the case would not settle.  Once I really understood each side’s position — on the facts and in the broader context — an opportunity to settle halfway began to emerge. More…

Categories: ADR, Arbitration, Settlement, Strategy, Structures

Add Your PerspectiveOctober 10, 2008

You Can Win By Settling Halfway: Settlement Structures Part I

“If you are going to do a half-ass job, don’t do it at all.”  My dad gave me that advice years ago, and I never forgot it.  But if you have an important dispute, settling it halfway may be a victory in itself.

“Settling halfway” isn’t complicated; it’s just what the name implies.  In disputes where you aren’t ready — or able — to settle the entire case, look for ways to eliminate parts of it to streamline the matter, limit expenses, and refocus the parties on resolving what’s left.

The Idea Behind Settling Halfway

After several years of defending what was then KPMG Consulting, I had one of those “aha” conversations with an outside counsel I really respect.  As we brainstormed on how to eliminate some of the inefficiencies inherent to litigation, he reminded me of a difference between our perspectives:  in-house litigators are free to ignore “unnecessary rabbit trails,” skip secondary witnesses, and forego tactics that have little likelihood of success, while most outside counsel feel compelled to leave no stone unturned — and they usually need written confirmation for the file when they abandon anything. More…

Categories: Arbitration, Negotiation, Settlement, Strategy, Structures, Tactics

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