Even trial lawyers will concede that these days, nearly all civil cases will settle. A handful of them will nonetheless rise from the ashes for secondary litigation because of poorly drafted settlement agreements. And while litigators are litigators for a reason—we love to litigate!—this is one circumstance in which we really must do all we can to avoid litigation.
You’re much more likely to draft a settlement agreement in a case than jury instructions, so best practices for settlement agreements should be a part of any litigator’s toolbox. Before you even start drafting, confirm the “deal points” that must be included and ensure all of the parties agree on them. Then consider “what if” scenarios that could arise, and incorporate terms that cover those hypotheticals into your agreement. And then consider settlement agreement terms that can be particularly important when you’re on the plaintiff’s side. This article discusses some of those more overlooked or underestimated aspects to settlement agreement drafting and negotiation. Once you realize that collateral issues to the settlement can be easily resolved in the agreement itself and start to include terms to that effect, the entire process becomes much more streamlined.