We represent parties in litigation and prelitigation disputes as settlement counsel.
The practice of settlement counsel is a specialized form of legal representation in which we are retained by a client to assist in settling its case during litigation or even prior to litigation. We work independently of litigation counsel who continue with their preparation of the case for trial while we contemporaneously work to resolve the case by negotiation. Our role is limited with the sole objective being to obtain the optimal settlement of the case. Our representation is also limited in time with a usual term of engagement of 60 to 90 days.
The question in the vast majority of civil cases is not whether it will settle, but when. The answer is that this usually occurs only after substantial delay and expense; often "on the eve of trial." Yet, experience tells us that most settlements are based upon information known well before trial and most cases ultimately settle for about the same amount as they would have if resolved much earlier.
The primary reason for this unnecessary delay and expense in our adversarial system is that, throughout the course of litigation, the end game is trial. Once engaged in a dispute, parties become entrenched in their positions. Litigation counsel are hired to do battle and their proper focus is on winning in court. Good litigation counsel must give the appearance and have the belief that they will be victorious at trial. However, in this process, alternatives to continuing the dispute often go unexplored. Further, if litigation counsel suggest settlement, even when it is the most reasonable course of action, it is often seen as a sign of weakness.
This is where specialized settlement counsel can be of assistance. Our goal in each case is to limit the cost of litigation, to accelerate recovery or the elimination of pending loss contingencies and to replace the uncertainty of litigation with the finality of an acceptable solution.
We begin by gaining an understanding of the client's interests and objectives. We review and analyze the case to determine the appropriateness of settlement at that time. We obtain information from litigation counsel but we do not advise or participate in the handling of the litigation. Litigation counsel continue their work as planned. They are not distracted from their mission and there is no interruption or delay of the case schedule. In this way, the incentives for settlement posed by ongoing litigation remain and, if settlement is not achieved, there has been no loss of time in moving the case toward trial.
We approach opposing parties with the prospect of discussing settlement and an explanation of our role as settlement counsel. If the opposing parties are willing, we and our client engage in discussions with their representatives who possess decision making and disposition authority. Our negotiations with opposing parties may involve mediation or other forms of dispute resolution appropriate to the case. We offer a variety of fee arrangements tailored to the client and the nature of the dispute.