Whether you are an experienced or more junior lawyer, are you applying the right techniques for settling your client’s case?
First and foremost, make sure you have a professional rapport with opposing counsel and parties that encourages communication. Without that, settlement prospects are diminished.
Settlement is accomplished by those who are open and communicate well without abandoning your role as advocate. If you maintain a professional and tough, but fair position you will be respected (usually), but most of all, your adversary will listen.
Settlement will not happen if the parties are not ready and not prepared to negotiate. So, look for the right time. I define that “right time” as a plateau—the point at which the parties can review their case, look into the future, evaluate the issues, and look at the costs of going forward versus the potential recovery.
From a plaintiff’s perspective, the presentation of a “demand package” that is persuasive, informative, well-documented, and useful to your adversary and the client/insurance company is essential. It must be a “mini” claims file, with the support of expert reports, analysis and documentation. It should be a trial portrait that marches off the page into the courtroom. If you cannot present that type of package then the time is not right or more needs to be done.
Again, from a plaintiff’s perspective, you should ask defense counsel what is needed to evaluate the case and to move toward settlement, and provide it, given it is a legitimate request.
We all know that not all cases we take work out as well as we had hoped. Some have unexpected limitations; when that is the case, recognize it, and try to get the best result you can under the circumstances.
Critical to any successful settlement discussion is having the right forum. My first effort is a comprehensive demand letter as outlined above. That may invite direct negotiations, or result in the parties agreeing to mediate (almost always the better option in a multi-party case).
More times than not, I am agreeable to using a mediator that the defense suggests. I am not troubled by the fact that the insurance company or defendant has used the mediator several times before. If this mediator has settled the cases, I am somewhat encouraged.
It is important to prepare your client for the inevitable “give and take” nature of the process, and advise them not to be offended at tactics such as low starting offers or foot dragging.
The client needs to know that if this is going to work, you both need to participate and look for a breakthrough that will lead to a final settlement. Encourage, do not discourage. The latter will lead to a failed negotiation.
No doubt you have your own thoughts on this process. Though simple, these work for me; perhaps some or all will also work for you.
Visit www.sfbar.org/mediation for more information about BASF’s Mediation Services.
Guy Kornblum, a partner with Kornblum, Cochran, Erickson & Harbison, is a specialist in civil trials, arbitrations and appeals. He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” and two books on insurance coverage and bad faith; he has over 200 published articles on topics relating to law practice and procedure.