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.
1. Think about the case from the other side's perspective. The chance of settlement will increase significantly if you and your client think empathetically.
2. 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.
3. 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.
4. 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.
5. 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!
6. Make a demand and engage in real negotiations before coming to the courthouse. Cases are much more likely to settle if the lawyers have exchanged offers before the conference.
7. The person with the ultimate authority to settle should attend the conference. The person responsible for determining the amount of any final settlement must attend—not someone restricted by a higher-up. Granted, this is more complicated when the party is the government, but even government lawyers should bring the highest-ranking decision makers they can.
8. Don't make the court manage your client's expectations. Focus on the best-case and worst-case scenarios and have candid discussions with your client before the settlement conference about the odds that the fact finder will or won't come out their way. Equally important in managing client expectations is to make sure your demand is anchored in the facts and the law.
9. Anticipate all of the material terms of the settlement before the conference. That way, if you resolve the case, you can put the terms on the record and create a binding and enforceable agreement, even if you never execute a written instrument memorializing the terms.
10. Be flexible and creative about possible offers. Arrive with an open mind, ready to go beyond the prearranged bottom line to what your client is truly willing to accept.
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