Your First Settlement Conference: Part 2 - ABA YLD 101 Practice Series

By David M. Koller

Think negotiating with other people's money is fun? It is. Well, sort of. As long as you arrive prepared, settlement conferences are enjoyable experiences for young attorneys, and often are productive for their clients. Here are some useful tips to think about as you plan to participate in your first settlement conference:

Learn the Court's procedures.
Different courts require different tasks to be completed prior to the conference. Some courts require, sometimes even weeks before the scheduled conference, that a submission (e.g., Settlement Memorandum) be filed with the Court. Some do not require any filings. Some courts require your client or a representative with settlement authority (if you represent a corporation) to be present at the conference. Some do not require that your client be present during the conference, as long as he or she is available via telephone, if necessary. Some courts require that settlement conferences be conducted in person. Some courts permit, and indeed prefer, that conferences be conducted via telephone. Some courts inform both parties of the conference, while others only inform one party, and place the obligation on that party to advise its adversary. The point is that once you learn you have been assigned to attend a settlement conference, you should immediately learn the specific procedures and requirements of your Court and presiding Judge. How? Ask your peers or consult the rules and judge's procedures. Often, your best bet is to call the Court's clerk and simply ask what you need to do prior to the conference.

Know your case, both factually and legally.
Just because it is called a settlement conference does not excuse you from knowing your case. In fact, chances are that you will be asked to discuss the facts of your case, and often times, at the onset of the settlement conference. Make a strong first impression. Prepare yourself for how you will answer the routine but fundamental question from the Judge: "What is this case about?" You should know, inside and out, the facts that make your case strong and therefore provide you with negotiating leverage, versus the facts that make your case weak and therefore vulnerable during settlement discussions. Of course, to determine which facts are favorable and which are not, you need to know the basic law that applies to your case. There is no escaping that piece, even at a settlement conference. Finally, know what types of damages are available and how they are determined in your specific case. This way, you can justify a demand if you are plaintiff's counsel, or an offer or rejection if you are defense counsel.

Understand your client.
You need to know your client's tendencies when faced with a lawsuit of the type that you are handling. If you represent an individual, speak to him or her prior to the conference (and preferably at the beginning of the case) to learn your client's views on settlement. If you represent a corporation, learn the company's fundamental philosophy regarding lawsuits. Is the company more interested in avoiding litigation costs and settling, or is the company more likely to take cases like yours to trial? This, of course, depends on several specific aspects about your particular client, like how often it is sued and its average cost of defense versus litigation costs. You can learn these tendencies by researching the client. A simple way is to ask more senior attorneys in your firm about the client's philosophy. Be careful, though: companies routinely change philosophies about settling versus trying cases, so make sure that if you rely on someone else's experience, it is from recent times. Ultimately, you want to learn whether your client would rather spend its money on settlement or legal fees and costs. Either way, you need to know this important detail prior to attending a settlement conference on behalf of your client.

Inform your client of the settlement conference.
As soon as you learn of the conference, make sure you let your client know. Communicate the date, time and place of the conference via your client's preferred means of communication. This point is as basic as it is important, so do it, immediately.

Speak to opposing counsel early in the process.
You should consider contacting the opposing attorney as soon as you learn of the conference. Such communication will allow you the opportunity to grasp a feeling as to the opposition's position on the possibility of settlement. Making the call will not hurt your client. In fact, it can only help, because you never know what opposing counsel will say during the call. For instance, he or she might indicate whether the client is interested in settlement, by saying something like, "Oh, I look forward to it and hope we can resolve the matter" or "I can't believe they are making me go to a settlement conference in this case. There is no way we are going to settle." Perhaps opposing counsel will not share any thoughts, but at least you know to expect more of the same leading up to the conference. To give you confidence in making this potential important call, you can always couch the communication as a courtesy where you are just confirming that he or she knows of the conference date, time, and place. A follow up letter confirming your conversation is a good habit also. This way, particularly in jurisdictions where it might be your obligation to advise the opposing party of the scheduled conference, if opposing counsel fails to appear, you avoid the blame.

Obtain settlement authority from your client prior to the conference.
This is another rule that is as simple as it is important. You need to discuss settlement with your client prior to the conference. You should request and obtain appropriate authority from your client prior to the conference. This way, at the conference, should your client not be present, you are completely aware of the terms that your client is willing to accept or offer to settle this matter (depending on whether your client is plaintiff or defendant).

Speak to opposing counsel again as the conference approaches.
It is a good idea to follow up with opposing counsel as the conference approaches. Again, you never know. The adversary might have changed its mind since you last spoke to counsel. At the very least, you want to know what to expect from the other side going into the conference. To give you confidence in making this potentially important call, you can always couch the communication as your effort to make sure both parties are on the proverbial "same page" prior to entering the conference.

Confirm the settlement conference.
As with any court appearance, make sure your office confirms the settlement conference with the Court and opposing counsel the day prior to the scheduled conference.

Bring your client's contact information with you to Court.
This rule applies if your client does not attend the conference with you. Depending on how the conference proceeds, you might need to call your client at one, and sometimes many, points in the conference. Avoid the ensuing embarrassment and stress that comes with not having your client's telephone number.

Negotiate confidently.
No matter your style, perform with confidence. Experienced opposing counsel will enjoy negotiating with a younger attorney who lacks confidence. Even if you are not confident, pretend to be so for the duration of the conference. You owe it to your client, and yourself.

Always act in your client's best interest.
Never do anything that compromises your role as your client's advocate. You must take great care in negotiating on behalf of your client, and should never settle a matter based on your own interests, your firm's interests, or anyone else's interests besides your client. Such behavior is malpractice.

Do not let yourself get pushed around.
Relatedly, do not let anyone, including the judge, force you into a settlement you know you will have a difficult time explaining to your client afterwards. Again, seasoned opposing counsel will try to pick on you as a young attorney. Represent young lawyers well and do not succumb! It probably is true that opposing counsel has more experience than you at conferences, but that does not mean that you should sacrifice your client's interests. Opposing counsel, and the judge, likely will be surprised and impressed if you stand up to the bullying, and depending on the circumstances, it might be a good idea to bully right back to opposing counsel. It will surely make opposing counsel regret not standing up to the bullying he or she faced as a young attorney.

Report immediately to client.
No matter the result, report back to the client as soon as possible, assuming of course that the client was not at the conference with you. If the client was at the conference with you, make sure, to the extent he or she is not litigation-savvy, that you explain exactly what happened and present options as to the next steps to take in the case.

Always maintain an active line of communication, with both opposing counsel and your client.
If, after the conference, you end up close to reaching a settlement but did not complete the deal, follow up with your client and opposing counsel in the weeks and months that follow. A simple telephone call every so often never hurts, and may end up working to your client's advantage. Negotiations should not stop after a conference. On the other hand, if you end up settling the matter, congratulations, and make sure you follow up with completing settlement papers and other related matters so that your case can be closed in a prompt fashion.

Settlement conferences are a huge responsibility, but very great court experience. These pointers will reduce your anxiety and hopefully assist you during your first few. Good luck, and remember, act confidently.

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About the Author

Mr. Koller is an associate with Astor Weiss Kaplan Mandel, LLP in Philadelphia, Pennsylvania, where he focuses his practice on commercial litigation. Mr. Koller is a member of the Young Lawyers Divisions of the American Bar Association and the Philadelphia Bar Association.

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