It may come as a surprise to some that a lawyer can, and should, prepare a case for settlement in the same manner as they prepare a case for trial. An attorney’s preparation for trial, including a deep and thorough analysis of the facts, legal issues, and strengths and weaknesses of each party’s positions, will inevitably put them in the best possible position to negotiate a settlement.
This is good practice for attorneys, as most are required to run these two tracks — settlement preparation and trial preparation — simultaneously. This is also good news for clients, who will incur significantly less fees if their attorney is able to concurrently prepare their case for settlement and trial.
This article will outline how settlement preparation and trial preparation largely overlap, and how to advocate for your client efficiently and effectively in the pre-trial stages.
Understanding the Facts
An attorney’s single most important task in preparing for settlement, or trial, is to develop a clear and thorough understanding of the relevant facts. The fact-finding process begins the moment that the attorney performs an initial intake of the client, and does not end until the disposition of the case.
To develop a thorough understanding of the facts, an attorney must aggressively pursue all sources of information. Whether it be following paper trails, following people trails, utilizing the various discovery tools that are available, performing independent fact-gathering searches, or outsourcing the same to private investigators, it is an attorney’s responsibility to marshal all facts, their sources, and what may otherwise color them in a quest to get to the truth. It is only then that the attorney can become an effective advocate.
For example, to conduct an effective deposition, an attorney must be flexible enough in their line of questioning to be able to follow the leads that are given to them by the deponent, and be open to receiving facts that they were not aware existed. While following these leads throughout the deposition, an attorney should remember to always call for the production of the documents and/or records that are referred to by the deponent that are not already produced in discovery. Additionally, the attorney should make note of each and every person referred to by the deponent, as these people could potentially be witnesses and additional sources of information.
Throughout the fact-gathering process, it is incumbent upon attorneys to continuously weigh the credibility of each source. If a source is deemed not credible, an attorney should explore whether there is another, more credible, source that can provide the same information. It is also important for the attorney to be aware of their personal assumptions, experiences, or biases and prevent them from coloring the facts that are gathered.
In some cases, fact-gathering can be overwhelming. Thus, organization is key to being effective and efficient. As each case develops, an attorney should be outlining issues, developing lists of discovery documents that are still needed to develop those issues, and making task memos regarding the efforts required to obtain the discovery that remains outstanding.
Preparing a Case for Settlement
It is only after the facts have been sufficiently gathered, and analyzed, that an attorney is prepared to dive into settlement preparation. By this time, an attorney should have all of the information needed to develop their argument and position with respect to each individual issue. If not, it is important that they continue to work on obtaining the missing facts, as an attorney should never negotiate based upon speculation.
In preparing for settlement, attorneys are advised to develop a detailed and organized outline of the issues and the parties’ relevant positions, with references to the facts wherever possible. For better discussion flow, these issues should be organized by those that have been resolved and those that remain outstanding. If negotiations fail, this will become the same basic outline used at trial, and can be further used to build direct- and cross-examinations.
If an attorney is well-prepared to argue issues at trial, they will certainly be ready to negotiate them as well. A thorough understanding of your case will inevitably enhance the prospect of a favorable negotiated settlement, because with this detailed knowledge you will be more equipped to explore various possible options and outcomes.
During negotiations, attorneys should actively listen and try to understand the other party’s position as much as possible. Developing a clear understanding of the other side’s arguments and evidence is important even if negotiations fail, because then you are aware of what you should expect at trial.
If an attorney disagrees with the other party’s position in negotiation, a useful tactic is to create doubt by reciting the facts and/or the law to disprove their arguments. Hopefully, instilling this doubt will create insecurity about trying the issue and precipitate a settlement. Conversely, if opposing counsel makes a decent argument, an attorney’s validation of that argument will go a long way in building their credibility with the other side.
Credibility is highly important in successful negotiating. It is critical to always mean what you say, and never assert empty or unreasonable threats. If a lawyer negotiates based upon equity and fairness, they are not wasting resources. However, if they approach negotiation with positions that are unsupported by facts or law, they will not only lose credibility from the other side, but also motivation from them to settle.
In sum, it is important for attorneys to develop pre-trial methods, in fact-gathering and organization, that will simultaneously assist them in both settlement preparation and trial preparation. By understanding a case sufficiently enough for trial, an attorney will be most prepared to reach a favorable outcome in settlement negotiations.