Thursday

20 Questions to Ask in Preparing for Settlement Conferences


Courts are using settlement conferences to resolve lawsuits more often than ever. No matter whether the settlement conference is with the judge or privately held, being prepared for it is critical to successfully representing your client and getting the best deal you can.

In a somewhat novel approach, US District Court, ND Ohio Judge John Adams has an excellent standing order for settlement conference preparation that you can read by clicking here. He wisely suggests some specific questions to carefully think over before a settlement conference occurs.

To those highly recommended questions we have added some of our own thoughts to create a list of the 20 questions you should ask of yourself and your client. Knowing the right questions to ask, and what the answers will be, is crucial to a successful settlement conference.

For each case there undoubtedly are unique considerations, but this is a good place to start with:

20 Questions to Ask Yourself and Your Client to Prepare for a Settlement Conference:

1. What is your goal in the litigation?
2. What issues need to be resolved, inside and outside of the case?
3. What are the strengths and weaknesses of your case?
4. Do you understand the opposing side's view of the case?
5. What is wrong with the opposing side's view of the case?
6. What is right with it?
7. On what factual and legal issues do both sides of the case agree?
8. On what do both sides of the case disagree?
9. What are the impediments to settlement?
10. What remedies are available through litigation or otherwise?
11. Are there possibilities for a creative solution?
12. Do you have adequate information to discuss settlement? If not, how will you get sufficient information to make a meaningful settlement discussion possible?
13. Are there outstanding liens involved? Do you need to include a representative of the lienholder?
14. What is the most powerful thing you will say in your opening statement?
15. What is the one thing that the opposing side will say in its opening statement that concerns you the most?
16. What is the most your client can get in court?
17. How long will it take to get the judgment paid?
18. What will the legal costs to the client be at all key points throughout the case?
19. If your client wins a significant verdict, what are the odds the opposing side will appeal it? And how long will an appeal take and what will it cost the client?

20. What is the value to the client's peace of mind gained by striking a settlement now?

There are strong advantages to discussing these questions and the answers with your client when you prepare the client for the settlement conference. If a personal client prep conference is not possible, consider creating a "client version" of the list and sending it to the client and asking them to review the questions and develop their own answers before the settlement conference begins.

Being prepared is the key to successfully stepping through each stage of the litigation process and the settlement conference is no different.

The Golden Rule in Litigation is simple: the more you know about your case, and your opponant's case, the more likely it is that you will get what you want. By the way, the reverse of that is just as true.

Ron Burdge
Helping Attorneys Win Cases Since 1978
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Monday

Referring Cases the Right Way

How you refer a case can be crucial. You can make a great impression on the referral attorney or you can make them wonder why they are hearing from you. Style and technology can make a huge difference. It's not something that most attorneys even think about, but you can cement your professional relationship and enhance your reputation, all while helping a client get the best representation possible.

A distant attorney wanted me to look over a case that he thought was beyond his area of experteise but the way he did it was nicely done and there's a valuable lesson to be learned here for all of us who sometimes refer cases to other attorneys (and we all do sooner or later) and want to get the most out of it.

First, he called before sending it and spent no more than a minute laying his groundwork. Not much more than who he was, what he did and why he wanted my help, the basic facts of what he wanted to refer, and that he'd be mailing it out since it was not time sensitive. Short. Brief. To the point. But the personal touch of the phone call (before the mailing) was a smart and thoughtful move. Much, much better than just dropping something in the mail or pushing a button on the fax machine.

Then the package arrived a few days later and I was even more impressed.

He could have just copied all the docs involved, stuck them in the envelope, and let me figure it out myself. Wisely, he didn't. He scanned all the relevant docs into pdf format and then loaded them all on a SanDisk Cruzer usb memory stick and put it in an envelope with a nicely written one page cover letter and a one page summary of each each that he wanted my thoughts on.

Putting the scanned docs on a usb memory stick was a clever touch. It certainly picques one's interest. And that's what you need to do when you want someone to give you (and your client) some of their time for free. And remember that making a good referral helps your client out, is an opportunity to help others learn about you, and helps you build your own business at the same time.

But you can make the referral in a way that enhances your client's chances of getting the best representation possible and, at the same time, enhances the chances that the receiving attorney will look for chances to refer cases back to you too.

The key here was that the referring attorney did not just put the scanned docs on any old usb memory stick. No, he put them on a Cruzer and noted in the cover letter that I should feel free to keep the Cruzer usb stick after reviewing the docs. It didn't cost much, and it was a terrific move.

For those who don't know, the Cruzer is SanDisk's clever usb memory stick that comes in various sizes and has the ability to load programs and other "self-starting" programs on it such that people who use it don't need to have the programs that your data is in just to read or pull up the data. I've used a Cruzer for several months now and love it (I'm not getting paid for this either). But this isn't a commercial for the Cruzer (you can click here to see and read more about it).

The point of it is that this attorney was wise enough to realize that, first, his client needed more advanced help in a specific area of law than he was comfortable with. Second, he identified who could help his client out (in other words, pick your referral attorney for his or her experience and experteise), and then he went the extra yard to impress that attorney with his-her professionalism and brevity (admit it, none of us really enjoy reading another attorney's multi-page letter) and then tossed in an extra bonus (here the Cruzer stick).

If you want to be noticed, if you want your referral letter to go to the top of the stack of incoming mail, that's the way you do it. Smart. Real smart.

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