Your First Settlement Conference: Part 1 - ABA YLD 101 Practice Series

By Tracy Catapano-Fox

Pursuant to court rules or order, you may be required to appear for your first settlement conference with the court. Going before the bench can be a daunting experience for new and experienced attorneys. This is often your first opportunity to impress the court and your adversary with your legal skills and acumen. The following are some guidelines and suggestions to prepare you for the conference.

Read and review your entire legal file.
Nothing impresses the court more than being familiar with your case. Plus, it is impossible for you to seriously discuss settlement if you are not aware of the details of your case.

Prepare a checklist of the most important facts in your case.
When discussing your case, it is crucial that the basic details be at your fingerprints, including the date, time and place of the incident at issue, the relationship (if any) between the parties, the damages alleged, the insurance policy limits, the insurance carrier (if any), and any important details about your case. It is often helpful to bring documents that are crucial to your case, such as a contract or agreement between the parties. It is truly embarrassing if you are unfamiliar with the facts of your case, particularly if your adversary is prepared.

Know your case's strengths and weaknesses.
While it is great to know why your client should win, it is important to know the weaknesses in your case that could make you vulnerable. You cannot plug up the holes if you don't know where they are. Make a list of your case's strengths and weaknesses. Beside each weakness, write the ways by which you can overcome them or why they are not material to your case.

Become familiar with the judge who is presiding over your case.
If your settlement conference is before the court, it is important to be familiar with the presiding judge. If the judge has court rules, read them prior to the conference. Often you can get hints on how he handles conferences by talking to other attorneys or his court staff. While it may not seem relevant to your case, it is important and will make the conference much smoother if you know the ground rules in advance.

Be familiar with your adversary.
Knowing your adversary will prepare you for the conference in key ways. If your adversary is low-key, it is unnecessarily and often counterproductive to enter the conference with guns blazing. However, if your adversary is contentious and belligerent, you should be prepared to be tough, but calm. While you don't need to act the same as your adversary, knowing his or her style will prepare you well at the conference. Remember, you always want to rise to the level of your competition, but not lower to it.

Bring any legal citations or decisions with you that are material to your case.
If you plan to cite to any statutes or case law in support of your arguments, it is always best to bring them to the conference. If possible, make copies of the relevant sections or the cases for all parties, including the court. It is one thing to cite to a case or statute that no one has before them. However, you look well prepared and knowledgeable if you can back up your argument with a copy of the supporting documentation.

Talk to your client before the conference.
While it may not be necessary, and possibly counterproductive, to bring your client to the conference, it is crucial to discuss the case with him or her prior to the conference. First, it is important to keep clients informed of the posture of the case. Further, you will need client approval before settling the matter. Accordingly, you must discuss any possible settlement offers or demands prior to the conference. Explain to him or her the strengths and weaknesses of your case and what you think a fair settlement would be.

Talk to your supervisor, boss or partner about settlement prior to the conference.
While this may seem obvious, it is a necessary step in preparing for the conference. Your partner's vision of the case may not be the same as your client's, and you will have to find a way to bring those views together before the conference. Further, they may have demands that they want addressed at the conference that you were not aware of but must know before tendering an offer/demand.

Determine the parameters of your offer/demand for the settlement conference.
You want to come to the conference aware of your client's wishes and what can reasonably be accomplished. You do not want to have one offer/demand that you cannot stray from; otherwise, the conference will be pointless. Consider the range of offers/demands that are acceptable to your client and law firm, be it monetary or otherwise.

Be prepared to present and justify your initial offer/demand.
It is important to present an offer/demand that demonstrates the merits of your case. Just coming up with a number or terms of an agreement isn't enough. You need to be able to justify your offer/demand by knowing the strengths of your case and any case law or statutory authority that supports it.

Do not agree to terms that are contrary to your client's wishes.
As stated above, it is crucial that you know just what your client will and won't agree to before offering or accepting terms of a settlement. If you settle a case in a manner contrary to your client's wishes, you will only have to renege on the agreement, embarrassing yourself, your client and your law office.

Have a Plan B.
Your initial offer/demand may have terms that are absolutely unacceptable to your adversary (although we like to think everything in the law is subject to negotiation). If your initial offer/demand is rejected, you need to determine if there are terms upon which the parties can agree. Once those areas are resolved, be prepared with alternative offers/demands on the unresolved areas that are still within your client's parameters for settlement.

Stay calm, cool and collected.
No matter what happens, always be professional.


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About the Author

Ms. Catapano-Fox is the principal law clerk to the Honorable Augustus C. Agate, Justice of Queens Supreme Court in Jamaica, New York. Her job is to conference cases, negotiate settlements, oversee motion practice, draft and prepare motions and assist the court during trials. Ms. Catapano-Fox is a member of the American Bar Association Young Lawyers Division, the New York State Bar Association and co-chair of a subcommittee for the Committee for Women in the Law, a member of the Queens County Women's Bar Association and the Queens County Bar Association.

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