Don’t move your offers up or down in equal amounts as your opponent
I often hear, “Judge, since they went down by $10,000, we will move up by $10,000.” Why? Lawyers believe that equal moves (up or down by the same margin as the opponent) are a fair and proportional move. However, if you have started at an unreasonably high or low number, then an equal and parallel increase or decrease in your offer does not mean much of anything. In addition, an equal-increment move often demonstrates to your judge that you have not listened to anything the judge has said. This is because the judge has likely tried to help you evaluate the case and given you a sense of a more reasonable settlement position than your preconference notions.
Often I see parties starting at unreasonably high or low positions. Without criticizing their opening offers, I politely work with the parties to demonstrate that their opening offers are out of range. Then, and most importantly, I focus on evaluating objective criteria, such as reviewing potential jury verdicts in similar cases, case law where summary judgment has been granted or denied on a relevant legal issue, and settlement values for analogous cases that have settled in our district. Objective criteria help bring the opening unreasonable position to a more palatable and sensible place. Thus, simply moving in lockstep with your opponent demonstrates that you have chosen to ignore that advice and only engage in positional bargaining and number shuttling. It devalues the process and likely decreases the chances of achieving a settlement.
Don’t try to turn the judge into your advocate
I sometimes feel that lawyers want to “turn” me, much as Nicholas Brody (a fictional American prisoner of war) was allegedly “turned” in season one of Homeland. That is, lawyers want to convince me that their position is the right one and that my role should be to hammer the opponents, yell at them if necessary, and make them come to their senses.
Why would I do that? I am a judge charged with being a neutral and impartial mediator. Judges are certainly happy to provide thoughts about the risks involved in further litigation and the challenges that parties face if they don’t settle. Judges are also willing to hear about strong evidence in your favor and will acknowledge good facts when presented to them. But trying to turn the judge into your advocate is both presumptuous and disrespectful.
Presumptuous because it assumes that you are completely correct in your view of the case and your assessment of its settlement value; disrespectful because it presumes the judge is just a potted plant simply waiting to be swayed to your side with no evaluative skills of his or her own. Moreover, a judge hammering the other side borders on coercion, which is the exact opposite of what your judge is trying to achieve; namely, an informed and voluntary resolution. Remember that settlement advocacy is a distinct skill, different from litigation or trial advocacy. Find that gear in a settlement conference other than the one you use in court, demonstrate a recognition of both the strengths and weaknesses of your case, and don’t try to turn the judge to your side. It just doesn’t work.
Don’t ignore your judge’s advice
When your judge tells you a number that will get the case done, listen. The judge has gathered information from both parties in confidence; the judge has a feel for what each side is thinking and what it will take to settle the case. The judge has also flushed out the clients’ needs and interests and knows how far he or she can push the clients at the finish line. Your judge has made relationships with the lawyers and clients over the course of the conference that foster a sense of trust.
There are times when I have suggested to counsel that his client should offer $60,000 to close the deal, and after conferring privately, counsel responds that his client’s best and final offer is $55,000. Really? It is certainly a party’s choice to respond in that way, but it does leave a bad taste when a case doesn’t settle under these circumstances after four hours of conferencing, and with the knowledge that everyone will be swimming in discovery for the next two years.
Judges don’t suggest numbers in a vacuum, and they don’t seek to favor any particular side with their recommendations. Rather, they blend an evaluation of the facts and law with the art of negotiating and the skills of mediation to arrive at their recommendation. Trust your judge, and your case will more likely settle.
Old habits die hard, but it’s time to rethink some settlement strategies. Consider these concepts before your next settlement conference, and you will better assist the judge in helping you achieve a successful resolution.