Normalize Recurring Settlement Discussions

• Pages: 20-21
• Date: 01 October 2024
• Author: Hon. Carl A. Aveni
• Subject Matter: Civil Law

t’s the nal pretrial conference, and counsel are ready to try

their case. The key witnesses have been deposed, and the

resulting transcripts are tabbed and highlighted. The lawyers

have traded exhibit notebooks and stand ready with motions

in limine. The dispositive motions have long been resolved,

and proposed jury instructions are nearing their nal draft. A

lot of work has gone into the case, and the lawyers are feeling

condent. Until the judge asks about the status of settlement

discussions. Counsel shift in their seats, looking uncertain. “Of

course, we’re always willing to explore settlement,” each duti-

fully notes. But after an early round of discussions failed the

previous year, neither side has meaningfully revisited the topic.

Each party had left that earlier effort believing their opponent

to be intransigent and unrealistic. Neither wanted to broach

the issue further—or at least didn’t want to be the rst to do

so. Both believed the gap to be insurmountable.

The court directs counsel to discuss settlement with their

respective clients, and then with each other. Three weeks later—

and only two weeks before trial was set to begin—the lawyers

report back that the case has settled.

Normalize Recurring Settlement

Discussions

By Hon. Carl A. Aveni, Litigation News Asso ciate Editor

© Getty Image s

There are, of course, good reasons why some cases set-

tle at the last minute on the courthouse steps. Final trial

preparations have a way of focusing attention and clarifying

costs and benets. It can take time for lawyers to build trust

with their own client, let alone with their opposing counsel.

Sometimes the adversarial process itself gets in the way, frus-

trating efforts to nd common ground. Sometimes it’s about

how much time and money has already been spent, and trial

preparation has taken on a life of its own. And, of course,

civil jury trials are a feature of our system, not a bug. If the

parties want their day in court, having a full appreciation of

the associated risks and rewards, the civil docket exists for

that purpose.

All of which is to say that even the most well-lawyered

cases sometimes settle late in the game or not at all. But if

many months of trial preparation have gone by without the

parties ever revisiting negotiations—throughout the princi-

pal fact and expert depositions; in the course of dispositive

motions and the resulting decision; past motions in limine and

right up to the brink of trial itself—counsel may have missed

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Published in Lit igation News Volume 5 0, Number 1, Fall 2024. © 2 024 by the America n Bar Associati on. Reproduced wi th permission. A ll rights reserv ed. This informati on or any portion t hereof may not be copi ed or

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