The settlement conference as just as integral to a lawsuit as any other part of the litigation process. This checklist is designed to assist the litigator who is preparing for a court-directed settlement conference.
- Think about the case from the other side's perspective. The chance of settlement will increase significantly if you and your client think empathetically.
- Don't wing it. Prepare for a settlement conference like you would a full-blown evidentiary hearing. You should be well versed in the record, familiar with what a possible summary judgment motion will involve (assuming the conference occurs beforehand), and knowledgeable about the evidence that will be offered at trial.
- Bring documents and key evidence. Leaving a crucial document or other piece of evidence in your office has a detrimental effect on the settlement process and makes the judge's job mediating the dispute that much harder.
- Be as candid as possible in any pre-settlement submissions to the court. If the judge requires the parties to submit ex parte settlement statements that include an evaluation of the case, take off your lawyer’s hat and give an honest assessment of the strengths/weaknesses of your case. Lawyers are often reluctant to put such assessments in writing, but these submissions are subject to Rule 408 of the Federal Rules of Evidence and thus only admissible for very limited purposes such as proving an effort to obstruct a criminal investigation.
- Be prepared to make an opening statement. Consider addressing the most significant issues of fact and law, the current state of negotiations between the parties, and any other matters that may help to advance settlement. Gear the presentation to the opposing party, not the court. And don't read an opening statement under any circumstances!