2 PerspectivesNovember 4, 2008

A Bird in the Hand: Just Send a Check to Settle Your Case

I have an old friend who told me how one of his plaintiffs’ cases — the one sure to go to trial — finally got resolved:  ”They kept hitting me with bigger and bigger checks until I had to settle.” He has a great story, but this post isn’t about settling big cases with big checks.  It’s about settling smaller cases with even smaller checks.

I recently wrote Non-Binding Arbitration:  Get Your Day in Court Without One Day in Court.  In that post I wrote how you can use a non-binding case evaluation to break your impasse:  ”The arbitrator issued his [nonbinding opinion], the parties immediately used it to frame their negotiations, and — after one more tactic from the other side that I’ll post about soon — we got the case settled.”   This post is about that “one more tactic.” More…

Categories: Negotiation, Settlement, Tactics

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

1 PerspectiveOctober 7, 2008

Non-Binding Arbitration: Get Your Day in Court Without One Day in Court

Have you ever had a dispute over an amount that was too small to litigate but too big to leave behind?  These are some of the most difficult issues to resolve; they can strain the attorney-client relationship and, occasionally, they test the bounds of common sense.  Before you file that lawsuit, consider whether non-binding arbitration can help you avoid the irrational.

Although I didn’t know what it was called at the time, non-binding arbitration came in especially handy for me in a dispute my client had with an insurer a few years ago.  The matter was the last, minor claim on a long list the two had fought out, and who was really “right” in this case isn’t really relevant at this point.  The more important facts were:  (i)  the amount in dispute wouldn’t support a full-blown lawsuit; and (ii) despite the modest quantum, a lawsuit remained likely given the egos involved and the broader relationship between the parties.

Stumbling into Non-Binding Arbitration

I searched for a way to get a judgment on a smallish case with complicated facts, and it couldn’t be done here. More…

Categories: ADR, Arbitration, Negotiation, Settlement, Tactics

Add Your PerspectiveOctober 3, 2008

One Reason to Manage the Other Side’s Expectations

There’s an old saying that “victory has a hundred fathers, but defeat is an orphan.”  It might have taken me a long time to learn why, but there is a good reason you should put that lesson to use at the beginning of many cases.

Would you rather be associated with a good case or a bad case?  If you had a choice, you’d pick the good case, right?  Everyone loves a winner, and at law firms it’s no different.  Associates, staff and even partners can smell a winning case, and a firm’s best lawyers often manage to work their way onto the team when they hear about a hot new matter.  It’s human nature, and it shouldn’t surprise anyone – just like it shouldn’t surprise us when good lawyers are able to migrate away from bad cases.

I wrote recently about how important it is to manage client expectations skillfully and realistically in Managing Expectations:  An Unexpected Lesson on the Bus to Hertz, but when it comes to their opponents, most people would rather surprise the other side than manage their expectations.  This post explores why you might not want to listen to most people. More…

Categories: Fundamentals, Miscellaneous, Tactics