You hire a lawyer to fight. You hire a lawyer to utilize the tools of litigation or arbitration to develop and present your case in a convincing way such that your opposing parties will sooner or later lose their claims in court. You selected an attorney predicated on his or her reputation for intelligence, experience, skill…and toughness. You are aware that the type of thinking necessary to formulate a strategy to win your case is the practical, tough minded and realistic aggressiveness that our legal system requires.
You have seen your lawyer fighting skillfully in law and motion, in depositions, in meeting with the adversarial counsel and the opposing parties and you know you have a champion for your cause on your side. He or she has told you of the strength of your case, of your chances of winning and discussed with you in detail how to bring your case to a successful conclusion before the judge or jury or arbitrator. While the lawyer has stressed there are no guaranties in litigation, he or she has advised you that it makes good sense to go to trial and take the chance to win.
Then comes the settlement conference required by most courts. And now you are staring at him or her while he or she tells you about the benefits of settling your claim, itemizing the weaknesses of your case, giving you a cost benefit analysis of taking the offer or going to trial. And as you argue that you still have faith in your case, your lawyer, your champion, is sitting there and calmly specifying all the ways you can lose.
Shocked and dismayed, you wonder if your lawyer has lost faith in your case, whether your lawyer has lost the tough aggressiveness needed to bring the case to successful closure. You wonder if his or her previous aggressiveness was just a show and this professional, sitting before you and telling you why settlement makes sense, is the “real” lawyer you hired. You wonder how this suddenly “practical” advocate can gear up to argue in court with the power and force you have seen over the past year.
You feel betrayed and worried that now, a few weeks before trial, your champion has become a wimp.
The result of such misapprehension on your part can be disastrous to your case. It can eliminate your faith in your own legal counsel whether or not you go to trial and thus undermines your ability to work together closely and effectively in trial. It can result in bitter exchanges and accusations and a settlement accepted which you later dislike or a trial undertaken which is not to your ultimate benefit. It can, in short, distort the entire process by which your case is either tried or settled.
This scenario occurs in a remarkable number of cases and is based on a misapprehension of the role of counsel in settlement discussions and miscommunication between the lawyer and his or her client-quite often caused by the lawyer not understanding why the client is “over reacting” and suddenly acting upset.
This article shall discuss the appropriate role and purpose of legal counsel during settlement discussions and provide some guidelines as to how to avoid the all too common disappointment with counsel seen among clients undergoing this process.
THE GLADIATOR IN SETTLEMENT DISCUSSIONS: ACHILLES WITH AN OLIVE BRANCH
Over ninety percent of cases are settled.
There is good reason for that figure. First, litigation is by nature uncertain and that uncertainty pertains to all sides in the dispute. Judges, juries and arbitrators can often make decisions that seem inappropriate to the parties and while that happens less often than reported in the press, it happens often enough that all parties put a premium on the certainty of result that settlement can create. Secondly, trial or even arbitration is remarkably expensive, both in terms of cost of experts and legal counsel and in terms of lost time for the parties and witnesses. The average day in trial requires four to five hours of preparation at night for the counsel, as well, and it has been estimated that the average trial costs each party a minimum of ten thousand dollars a day in out of pocket fees and lost time.
Little wonder that the uncertainty of trial and the expense of testing that uncertainty leads the overwhelming number of parties to settle.
But the paradox is that unless a party is ready, willing and able to try the case, the other side may note that fact and not make an offer worth considering. Further, there is always the chance that the case will be one of the ten that do go fully to trial. Thus full preparation for trial is required, with counsel and the client engaging in that intensive “month before trial” preparation that is required. See our article on Trial Preparation: What Happens in the Month Before Trial.
It is hard to describe to a novice the amount of work and close interaction that is required between a client and trial counsel to engage in that almost mythic event, the trial and preparation for same. And it is during that period of intensive and vital preparation and “combat bonding” that suddenly trial counsel comes along and seems to suggest a pallid alternative-settlement. It is rather like the football coach on the day of the big game suddenly telling the team that they should not play to win but to tie. And the reaction of the client often mirrors what would be the reaction of the team.
But trial counsel is obligated by the Professional Rules of Conduct of the Bar to do precisely that…not to suggest a tie, but to explore any reasonable settlement resolutions and give the client a valid and full cost benefit analysis of the alternatives available. A trial lawyer who refuses to communicate and advise on a written offer presented is in violation of the Code of Ethics and a trial lawyer who ignores and does not respond to potential reasonable settlement is a bad lawyer.
The underlying problem is that the methodology for examining settlement requires trial counsel to consider ALL the possible pluses and minuses of the settlement and to explain them in detail and “objectively” to the client. The client, used to hearing plans for the overcoming of the opposing party’s arguments, now hears trial counsel list the strengths of the opponents in detail and describing the reversals possible if trial is attempted.
The coach is explaining precisely how the other side may win and exploring the benefits of not playing the game and, instead, considering if his team should make a deal.
Once, while exploring a complex proposal submitted by an opposing party in a contractual dispute, this writer noticed that the client was simply refusing to listen and, instead, was arguing with some emotion each point made. He was busy convincing the jury instead of objectively looking at the relative strengths and weaknesses. After a moment, I stood up and said, “Be quiet. I am now going to give you the closing argument opposing counsel will deliver for the first ten minutes of his closing.” I then tore our case apart while the client stared, upset.
He was dismayed, had never really considered those points in that way, and wanted to settle for whatever we could get. “Stop,” I said, “now listen to our side for ten minutes.” And I gave him our closing argument in brief. By the end of that presentation he seemed much happier.
What I then told him was that the task of a lawyer is to argue the case as strongly as possible and any good lawyer can do that. But the best lawyers can argue both sides equally well. To know the arguments and theories of the opponent is vital for a successful prosecution or defense of a case. As one famous general once said, “I don’t need to know just my plans. I need to know his plans.”
The client may be emotionally invested with a particular point of view. Why else would he or she bring the action? But the lawyer must be not only committed to the client’s point of view, but capable of examining objectively the other side’s point of view and analyzing it in detail without emotion or prejudice. That helps win a case…and is equally vital when considering settlement proposals.
Thus, the wise client will understand that the lawyer making the opponent’s points to his or her own client is exhibiting a skill set critically necessary for good representation. A lawyer who cannot describe the opponent’s case convincingly and with skill…cannot beat that case.
Equally true, your attorney should be smart enough to outline in detail the advantages of settlement and propose appropriate counter offers. That does not necessarily mean he or she wants settlement: indeed, most attorneys make far more money if the case does not settle. It does mean that part of his or her duty is to “work the settlement” with as much vigor as the underlying case. Too many cases result in a verdict that is a “win” for the side but, once the costs and fees are allocated, are actually a loss. The good attorney divorces him or herself from the rigors and excitement of the litigation long enough to engage in such economical analysis. This is not a combat for proving who is the best lawyer: it is a complex process to provide the client with a result that is beneficial.
Or, as one great litigator once told his client in my presence, “If you want to see gladiators, rent the movie Spartacus. If you want to really win your goal, decide if this is a movie or reality and listen to the proposal they have put on the table.”
That same attorney commented, “I am not worried if they think we are weak in discussing settlement. What do we care what they think if we are always willing to go to trial? We explore any possible settlement and if they don’t give us a reasonable offer, we go to trial. No big deal.”
As advocates, attorneys are prone to argue the matter before them with vigor. This writer has seen that proclivity during settlement discussions with the attorney, apparently forgetting which team he or she was on, arguing the case for settlement with such enthusiasm that the client may wonder if that same enthusiasm will be seen if there is no settlement and the matter goes to court. Again, do not confuse a skill set and tendency to advocate with lack of vigor to try the matter. The very skills that have your attorney arguing with you…are the skills you may need when it is time for them to argue for you.
PRACTICAL STEPS TO TAKE
1. Understand That Winning Can Take Place Without Trial: Realize that you are interested in results, not catharsis. Trials can be satisfying, indeed, are often the most exciting event in a person’s life. However, if equivalent results…or nearly equivalent results… can be achieved by settlement, consider them carefully and listen closely to the lawyer’s cost benefit analysis.
2. Objectify the Discussion: A good settlement is a settlement no one particularly likes. Both sides should walk away slightly or more than slightly dissatisfied. The question is not whether you feel you have “won,” but whether the end result is preferable to the likely or possible result of litigation. Court can seldom do more than award you money. Anger, frustration, revenge, vindication-all these may be emotional goals you have, but ultimately the best the court will give you…is money. So, examine the money that is the bottom line and compare it to the possible or likely net money from the trial and try to consider it as objectively as possible.
3. Your Lawyer Should Describe the Settlement Completely: Let Him or Her Do It. You need a full and complete and objective analysis of the advantages and disadvantages of settlement from your lawyer. Do not argue with him or her when they list the advantages of the possible settlement. Discuss, do not argue. The lawyer is not only on your side, but probably hoping you will not settle since going to trial is what they do for a living. It is, ultimately, your money and your future on the line and you owe it to yourself to completely understand the settlement possibilities. Only your lawyer can fully advise you as to that.
4. If you Are Concerned Your Lawyer is Losing Faith in the Case…Say So. Ask. Lawyers are often astonished to discover their clients now distrust their fighting spirit when all they were doing was exploring possible settlement. If your lawyer has made statements that cause you concern, put it on the table and ask if the lawyer still has faith in the case. Explore their response with them if it causes you to fear their ability to effectively advocate your case.
5. Be Flexible and Creative in Responses. A litigation is a process which serves only one function: to determine rights and obligations of the parties. That may mean you are owed money. It may be that you owe money. It is not a morality play, a movie, or a religious festival. You can bend it to your needs if you spend time to inventively and creatively outthink your opponents by pondering settlements that might be appropriate but not considered by your opponents. For example, we once represented a distributor who was desperate to keep his territory for a manufacturer who wanted to go in house and we had spent months arguing over a particular phrase in the contract as to rights to terminate. Our client finally realized that he only wanted to represent a single product since it blended well with other products he was selling as a package and the settlement simply resulted in his keeping rights to distribute that one product and giving up the rest of the distribution. Our client was delighted, the manufacturer was relieved and the parties saved several hundred thousand dollars in a multi week trial. All this developed because our client was told by his wife, who was upset by the coming trial, to take a long walk and ponder precisely what this fight was about. “And it is not about your hurt feelings,” she warned. She was right and our client outlasted the manufacturer.
6. As Long As You Are Willing To Go To Trial, Engage in Settlement Discussions. A common mistake is for parties to refuse to even discuss settlement, as if an abrupt “no” demonstrates moral courage or the like. That shuts off possible exploration of alternative resolutions and also forces the other side to prepare for trial when settlement discussions may cause them to stop their preparation and concentrate on settlement. There is nothing to gain and much to lose by refusing settlement discussions. At the worst, it will compel the other side to waste time and energy pursuing settlement and, at best, your case may settle to your advantage.
7. Understand Your Attorney’s Role Is Not to Strut…but To Get Results Perhaps thirty years ago this writer knew a relatively famous attorney who strutted about this City and whose reputation, in the opinion of this writer, was based on successes early in a career that lasted decades too long. As the years went by and he relied more and more on media to enhance a reputation that was no longer based on success in court, he became increasingly vocal and outrageous in his statements. One of his appearances in Court had him appearing before the irascible and brilliant Judge Ira Brown, the law and motion judge of San Francisco who tolerated nothing but well prepared and thought out argument.
Judge Brown would glare at the lawyers before him, head rested on his fist, eyes cold and steady. This lawyer was literally strutting before the Judge, arguing a motion to dismiss, castigating his opponent and declared, “Your Honor, I never settle cases. I bring them to conclusion to achieve justice for my clients as is my sworn duty…”
“What?” barked Judge Brown.
The lawyer repeated his claim.
There was a moment of silence while the room waited to hear Judge Brown’s reaction.
“Then, counsel, you are an idiot. You would fight over a matter that should be settled in ten minutes of commonsense discussion. You are not a professional advocate. You are a harpy.” With that he gaveled a close to the hearing, leaving the attorney open mouthed and astonished.
The role of your counsel is not to win at trial no matter what. It is to get you the best results he or she can…and that means a full, exhaustive, objective and aggressive examination of all settlement possibilities.
When your lawyer does that, realize that this is not only what you need to hear…but what you should want to hear. .