Judicial Settlement Conference - Gambits
Why don't you tell me about your case?
What information do you have from them so far?
What is your client's position?
Do you have any money?
How are you going to get around the fact that … ?
Let me ask you a different question.
Is your client really firm on the amount he is demanding? Is there any give to that?
I assume you have talked to him about the expenses of litigation? And the expenses of pretrial discovery? And the costs of the depositions?
You know, you have a problem. Let's focus on your problem for a moment. I don't know who is going to be on your jury, but how do you explain to a jury that…?
I don't know what I can get from the other side, but if I can get some movement, do you have some leeway on the amount you are demanding?
Let me see how far I can move the other side, and we will see what we can do, all right? [Caucuses with other party] Would you excuse me for a minute?
Tell me, your guy didn't… [brings up negative facts]
So tell me something, your client probably isn't really at zero is he?
Let me ask you a question, from your client's point of view, your client is really not interested in being in this lawsuit is he? He is much more interested in going on with his life isn't a?
Your client doesn't want to get tied up in pretrial discovery?
I have had some discussions with the other side. If I could get the other side to come down in their demand, give me an idea of how much money you could offer to settle this case?
[Defense offers a low amount] You know that amount of money is not going to settle this case. He has probably spent more than that to bring this case. In addition we probably have to give him a little bit more. Let me throw out a figure, and ask you how this figure hits you. How would $X sound to your client?
[Defense says no to that amount] Why is that not a realistic number for your client?
[In response to the defendant’s favorable view of their case] You know you're going to have a jury, and it is my experience with juries in this jurisdiction that [they are going to be favorable to the other side {for some reason}].
You know the answer to your argument is xxx, and the other side is can bring this out, …
[Defense makes an offer] Let me see what we can do with the other side, and see if that is acceptable.
How do you know that?
To let me ask you a different question.
You know, you have a problem with that. Picture what happens in front of the jury when he comes to court and says …
Let's talk money. There is some movement on the other side.
Let me ask you this. Why don't you go out and talk to your client and ask him if I could get them to pay somewhere in the area of $x-y, ask your client to use that kind of offer were made, would he accept.
I need to make something very clear. Make sure your client knows that I do not have that money from them yet. This is not an offer. Second, I want you to understand that I am not asking your client for an offer that matches their possible $x-y. What that means is if you folks do not agree at this number when you go to the next stage of litigation to demand is still back at the original number.
Keep in mind that there has been no discovery at [if that is true]. Discovery does strange things to people. Your client doesn't want to have his deposition taken.
If you would take a settlement, it would be over. If he doesn't accept it, he's got a lawsuit. He's got the expenses of a lawsuit. Who knows what will happen. All he is buying is a chance that the jury will believe him and will not believe the other side. He can tell his story to the judge or the jury, but who knows what will happen. He is taking a chance that that jury will give him more than the other side is offering today. It is not clear how the jury would react to what the other side is saying now.
But let us be clear, I do not have that offer from them now. And, I am not asking your client to make a new offer. I am only asking that if I got that offer from the other side, would your client accept it?
This is your best chance to settle. It's your best chance because 1) it is early in the process. No one has spent a lot of time yet. No one has spent a lot of money yet. And both clients are a little bit cooler. They will soon see that this is a long process. But no one is become too hard yet. [Speaking to lawyer who is without a client now] Do you want to go outside and make a call to your client?
[Judge says, I need to start with the plaintiff and see if the plaintiffs would consider accepting an offer in a certain range. I don't want to get the defense to come up and make an offer if the plaintiff will not accept it]
[Talking to defense] We are making some progress. Time has some value to your client too. They have moved.. If I can get her to settle for $x-y, could you get your client to accept it?
You know you have an obligation to the court too. Tell your client it is less than what he hoped for, but it brings the process to an end, he doesn't have to come in for depositions, he doesn't have to go through a lawsuit. If he can pay this amount then it's over. Why don't you go call him?
Settlement Conferences
The 7 C’s of Settlement – Settlement Advantages for Clients
from
Settlement Conference Techniques
U.S. Federal Magistrate Judge Morton Denlow[1]
In the text below, Judge Morton Denlow lists the seven “C’s” of settlement, which is something that he talks about in the opening statements he makes to the parties when he holds a settlement conference.
Judge Denlow says that, “Each of the potential advantages discussed below should be explained as part of an opening statement.”
1. Client control over the outcome. Most clients prefer to control their own decisions and destinies. In the litigation process, decisions are left to lawyers, judges, and juries. A settlement conference provides clients with the opportunity to control the outcome of the dispute through negotiations and discussions in which they are involved. This is an important concept for clients, who often feel bewildered by litigation. Encouraging clients to assume an active part in the decision-making process empowers them rather than allows them to play a passive role in litigation, where their lawyers will decide to implement the litigation strategy.
2. Contain costs. Litigation is expensive. Legal fees can be a major burden for clients. In addition, litigation creates an opportunity cost for clients, who are required to devote their time and attention to gathering documents, responding to interrogatories, attending depositions, consulting with counsel, and participating at trial. Settlement enables parties to eliminate these expenses and devote their time, money, and energy to their current business or occupation.
3.Certainty of outcome. Unlike appliance makers, lawyers do not give money-back guarantees when they undertake a case. The reason is quite simple: litigation has risks that make the outcome uncertain. This uncertainty continues as motions are decided, trials are conducted, and appeals are weighed. Furthermore, this uncertainty can last for years, from the time a case is filed until a final judgment is rendered. Settlement provides certainty as to the outcome, and this is desirable to most clients.
4. Confidentiality. Litigation is a public process. Less than complimentary facts or comments will likely be placed in the public record and presented at trial by both sides if the case continues. These statements are available to customers, employees, prospective employers, and the press. Settlement can either be public or private, depending upon the parties’ agreement. If confidentiality is important to clients, it can be achieved through settlement. Confidentiality is a significant motivating factor for many parties in choosing to settle.
5. Creativity. Judges and juries are bound by established legal principles in rendering justice. These principles have been developed over years, and unless the case is in equity, judges do not have the ability to fashion creative resolutions. On the other hand, parties are free to be as creative as possible in fashioning a settlement of their dispute. For example, in a suit where an employee was terminated three months short of vesting in a pension, as part of the settlement the defendant retroactively placed the plaintiff on family medical leave for three months so that she could qualify for the pension. The plaintiff agreed not to seek reinstatement, and both sides came away satisfied.
6. Continuing the relationship. If a case proceeds through judgment and possible appeals, the parties will likely be angry with each other, and the chance for a continuing relationship will be small. Conversely, if they settle, the parties may be able to preserve their relationship. For example, in a case involving a dispute over a patent, the parties agreed to a licensing arrangement that enabled the defendant to continue manufacturing its product.
7. Closure. Litigation can be an emotionally trying experience. Moreover, it generally requires parties to relive experiences and situations they might rather forget. Cases addressing adverse employment actions, such as claims for wrongful discharge or discrimination, represent situations that parties would prefer to put behind them. These situations will generally be recounted in depositions, motions for summary judgment and at trial. A settlement provides closure and gives the parties an opportunity to look forward, not backward.
Mediation v. Judicial Settlement Conferences
Differences
What is discussed?
Types of settlements
Role of the client
Techniques used by the neutral
Time devoted to the session
Who is the trier of fact?
How the training differs
How lawyers (and clients) will prepare
Settlement Conference Judge - Legal Lion or Problem Solving Lamb: An Empirical Documentation of Judicial Settlement Conference Practices and Techniques
[A Survey of 368 California Judges]
Peter Robinson
Encouraging settlement is increasingly being recognized as an integral aspect of the work for many judges…. This Article contributes to the discussion by presenting empirical data on judges’ perceptions of their actions in encouraging settlement. This Article will be useful to those interested in this debate by documenting a comparatively rare perspective on how judges encourage settlement.
3. Summary of the Data on Focus
Enough judges focus on explaining legal strengths and weaknesses to justify that this is what stereotypically occurs in a settlement conference. Surprisingly, a significant percentage of judges also report primarily focusing on satisfying underlying needs, goals, fears, or feelings. The result substantially disproves the perception that settlement judges discard the parties’ emotions in favor of legal realities. It is surprising that the frequency of focusing on underlying needs and feelings is the same in family law as general civil. The author had anticipated that family law judges would focus more on emotions than general civil judges because of the reputedly more emotional nature of those disputes.
The polarization about focusing on the law among high settling general civil judges establishes that judges can settle cases with and without this focus. High settling judges are more likely to frequently focus on the human aspect of the dispute compared to low settling judges. While this should not be surprising, the data confirms that a significant number of judges rarely escape from the tunnel vision focus on the law.
There is no statistically significant relationship between the focus and length of a settlement conference. Short conferences may be primarily focused on satisfying underlying needs, goals, fears, or feelings. Longer conferences may be primarily focused on explaining legal strengths.
The first plot points for judicial settlement technique genetic mapping are surprisingly complicated.
i. Summary of the Data on Directiveness
The combined results from the questions about directiveness reveal the following surprisingly diverse picture. First, the frequency of settlement judges being very influential in helping parties determine the terms of a settlement is a bell curve; high settling judges report being influential more often than low settling judges. Second, the judges report asking more often than telling participants what they should do; while high and low settling general civil judges are substantially the same in this area, high settling family law judges use the asking technique more than low settling family law judges.
Third, the judges are fairly evenly divided about expressing opinions on the likely outcome of the case at trial; high settling general civil judges are polarized about expressing opinions on the likely trial outcome. Family law judges predict trial outcomes less frequently than general civil judges, but high settling family law judges do it dramatically more than low settling family law judges.
Fourth, the judges are fairly evenly divided about urging parties to accept a particular settlement proposal, except that very few judges report using it in almost all their cases. Nearly one-third of high settling general civil judges report using it in less than 10% of their cases, yet high settling general civil and family law judges use it more often than low settling judges.
Finally, when general civil judges focus on the parties’ underlying needs, goals, fears, and feelings, about half of them are likely to ask parties to generate creative solutions; about one-third of them are likely to give their advice about addressing the underlying needs, goals, fears, and feelings; and about one-fourth of them are likely to express opinions about parties’ needs, goals, fears, and feelings. The same trends are even stronger for family law judges who report the above behaviors approximately 10% more frequently than general civil judges.
The emerging picture regarding directiveness is surprisingly complicated. High settling judges tend to be more influential and use more directive techniques like expressing opinions on likely trial outcomes and urging parties to accept a particular settlement proposal. However, significant numbers of high settling judges avoid those techniques and most judges use “asking” techniques more frequently than “telling” techniques.
Correlations between the directive variables suggest that judges who use the more directive techniques are more influential. This suggests that many judges differentiate between their adjudicatory role of expressing their opinions and their settlement role that presents the option of being more facilitative. It also suggests the image of the settlement judge as an authoritative task master does occur, but settlement conference technique and approach is so diverse that it disproves the anticipated stereotype.
j. Summary of the Correlations Within Directiveness
The bell curve frequency of judges claiming that they are very influential encourages the exploration of correlations between influence and some of the other techniques. Is there a positive correlation between influencing the outcome and the other directive techniques? The data reveals a very strong correlation between the extent of reported influence and the use of the techniques of: (1) expressing opinions on the likely outcome; (2) urging the acceptance of a particular settlement proposal; (3) telling attorneys and parties what they should do; (4) expressing opinions about the needs, fears, and feelings; and (5) giving advice to address the needs, goals and feelings. This positive correlation means that those judges who claimed to be influential also claimed to use these more directive techniques. Likewise, judges who claimed to not be influential eschewed these techniques. It is important to remember that more influential judges had a higher settlement rate and that significant percentages of high settling judges reported they were not influential.
f. Summary of the Data on the Motivations for Directiveness
The following statements summarize the data on the motivations for directiveness:
To the extent they encourage settlement, the vast majority of judges are motivated by the sense of accomplishment from being able to settle difficult cases.
To the extent they encourage settlement, the vast majority of judges are not motivated by concerns about not wasting the time the judge invested in the conference.
To the extent they encourage settlement, judges were fairly evenly divided regarding the motivation of relying on settlements to manage a busy docket.
To the extent they encourage settlement, almost all judges are motivated by the belief that settlement is in the best interests of both (or all) parties. Ninety percent of judges report this motivation was present in more than sixty percent of their settlement conferences.