Death of a Settlement

• Author: Dwight Golann
• Pages: 33-38

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Death of a

Settlement

DWIGHT GOLANN

The author is a professor at Suffolk University Law School, in Boston.

You are trying to settle a case set for trial next Monday. After

weeks spent trading unrealistic offers and demands, you finally

get a signal that the other side is serious. You’ve prepared your

client for this moment, reviewing with him the strengths and

weaknesses of his case. You’ve given your best advice about what

terms would make sense to resolve it.

Now it’s crunch time.

Until this moment the client has followed your advice. Now,

suddenly, he refuses. He denies the existence of vulnerabilities

that you thought he understood and accepted long ago. He insists

that he has already compromised way too much. He won’t give

up any more; in fact, he tells you to take back some important

concessions already offered.

You know that the other side will cry bad faith—that back-

tracking now may well blow up the entire process, the whole

prospect of settlement.

What’s going on?

When clients behave like this, the root cause likely lies in this

basic reality: Despite the popularity of win-win bargaining, dur-

ing settlement negotiations most litigants feel they are losing

rather than sharing a win.

The perception of losing spurs powerful emotions, different

in kind from others we see in the litigation process. They are

intense, arise at awkward moments, and provoke dysfunctional

tactics. And experience suggests they are perhaps the single most

important reason settlement negotiations fail.

What causesthisbehavior? How can we lawyers respond to

it? As we explore those questions, let’s consider these two cases:

First Case: A small New England town. A state trooper begins

a high-speed chase of a drunk driver. Pursuing rapidly, the po-

liceman runs a stop sign and hits a third car crossing the inter-

section. It’s a classic T-bone collision. The trooper is unhurt, but

the driver of the third car dies instantly. He was just 17 years old.

The driver’s family sues the state, arguing that the trooper was

negligent in ignoring the stop sign. A jury will decide whether

the officer acted carelessly.

As counsel for the trooper, we begin to prepare his defense.

We investigate, looking for facts to show that the victim had been

drinking or irresponsible. Instead we learn that the boy was a

model student who left behind a loving family. Still, the trooper,

we will argue, showed initiative in giving chase to a dangerous

driver. We know that local juries consistently have found for

the police in similar circumstances. And state law caps liability

at $150,000.

Two years later, as trial nears, we offer to settle at $100,000.

The offer is rejected.

We wait a few weeks, then raise the offer to $120,000. Plaintiffs’

counsel says that she’ll recommend it to her clients. Yet, word