Thinking Settlement

Posted By Cliff Tuttle | January 3, 2016

No. 1,241

Litigation is both wasteful and expensive.  Because either side can make decisions unilaterally that either expand or extend the litigation process, A lawyer and client should always discuss what it might reasonably take to settle the case. 

Why not just go for the win? Because even winning costs something and even the strongest case has some degree of uncertainty.  Moreover, while it sometimes may be relatively easy for a plaintiff to obtain a judgment, collecting it is often difficult or even impossible. Since both parties must reach agreement, even seemingly obvious settlements may prove to be unattainable.  But it is always worth trying to settle a case, even when negotiations are difficult.

Before a settlement offer can be made, the lawyer and clients must agree on a strategy.  This can be just as difficult as negotiating with the other side.  The lawyer usually has the advantage of knowledge gained through experience.  But the clients’s money and other rights are at stake and it may be very difficult to reach agreement on what would be an acceptable outcome, especially when there is disagreement among the clients.

Of course, the offering party must agree among themselves on both an opening gambit and an acceptable outcome.  Settlement negotiations are viewed by most parties as a dance in which the ultimate outcome is reached by degrees.  In such a situation, accepting the initial offer can be viewed as a defeat by the accepting party.  This mandates anticipation of some sort of a counter proposal.  This virtually requires that both sides think more than one move ahead, as in chess.

Settlement is an opportunity.  It is the opportunity to reach a resolution that is better than the outcome that may result from the judge or arbitrators making the final decision.  When possible, the desired outcome should be framed as a gain, not a loss.  Attention should be paid to side issues, especially when a win in certain arenas can be had at little or no cost.

It is never too early to think settlement, even when the ideal time to settle has not yet arrived.  But the time for the best settlement will soon pass. While it is rarely too late to reach some kind of settlement, doors will eventually close.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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