From the Bench. Writing Effective Settlement Conference Letters

• Author: Hon. Sunil R. Harjani
• Pages: 5-10

From the Bench

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5

HON. SUNIL R. HARJANI

The author is a U.S. magistrate judge in the Northern District of Illinois and an associate editor

of Litigation.

You and your opposing counsel are headed

to a settlement conference with a judge.

The judge may request that letters first be

exchanged with a settlement demand and

a settlement offer. This is an important

part of the process. As a federal magistrate

judge, I read hundreds of settlement let-

ters every year. Some are excellent, oth-

ers not so much. Here are my suggestions:

Write for the judge. Often, settle-

ment demand and response letters are

addressed to the opposing party. Part of

what lawyers seek to do from the start is

convince the other side that they have a

strong case. Remember, though, that your

letter might be the judge’s first exposure

to the case.

When cases are referred to me for

a settlement conference, I often have

had no involvement even though the

litigation may have been proceeding

for several years. There are times, while

reading a settlement letter, that I feel

as if I just walked into the middle of a

conversation. Counsel often jump into

the weeds of the case without giving any

background information.

As a result, I often find myself asking

basic questions about the overall factual

picture. In business cases: What do the

companies do? What do they produce or

what services do they provide? Where

are they located? How large are they? In

employment discrimination cases: What

was the plaintiff’s job? How long did the

plaintiff work at the defendant company?

With what compensation? Is the employee

working now?

The same is true of the legal claims

and defenses. Sometimes they are not dis-

cussed until deep into the letter. A short

paragraph near the beginning helps the

judge understand the nature of the case.

For example: “My client, a McDowell’s

restaurant cashier for two years, was ter-

minated in 2019 because she is African

American. She brings this claim against

the franchisor under Title VII.” Reading

that statement, the judge immediately

knows what the case is about.

Explain the source of your evidence.

Settlement letters often tout the strength

of that party’s case but rarely explain how

the party will prove its case at trial. They

routinely narrate a set of facts without

attribution to the source of the evidence.

Questions naturally come to mind: Who

will testify to that great fact? What exhib-

its help prove it? Is there any corroborat-

ing evidence?

When that information is absent, it is

assumed that the only evidence will be the

client’s testimony, even if discovery has

actually uncovered key supporting wit-

nesses and documents. When the judge

discusses the strengths and weaknesses

of the case, part of that analysis includes

an assessment of the quantity and quality

of the evidence that will be presented at

trial. If you don’t explain the sources of

your evidence, the judge cannot give an

informed and credible evaluation.

Identify and analyze the elements

of the claims or defenses. This sounds

simple enough. Yet, it is amazing how of-

ten a discussion of the law that applies

and the elements of the claims and the

defenses are missing. Judges handle hun-

dreds of cases every year, in all areas of

the law. Given that volume, it is always

useful to be reminded of the applicable

legal framework.

Lay out some relevant case law from

the court of appeals. Then briefly explain

how the facts you’ve uncovered meet

those elements. You’ll have to do that in

your closing argument. You might as well

start now. After all, you may never get to

trial, and this will help the judge understand

how your case-in-chief will play out.

Don’t complain. Lawyers often take up

valuable pages doing one thing that does

not move the settlement needle forward.

They complain. They criticize discovery

behavior. They threaten Rule 11 and Rule

37 motions. They call the other side’s case

meritless, lament how disappointed they are

with the litigation conduct, grumble about

WRITING EFFECTIVE

SETTLEMENT

CONFERENCE LETTERS