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.
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