Settlement Negotiations

• Author: Kenneth P. Nolan
• Pages: 61-68

Settlement Negotiations

61

Trial lawyers love to fight. Making witnesses squirm, the jury

swoon, and the opposition grovel are part of the thrill. Trial lawyers

are Clint Eastwoods in Brioni suits. Tough, macho, determined to

win. Always ready for trial, always willing to take a verdict.

Yet, the truth is that 97 percent settle. Despite this, no one takes

the young associate aside and tells him that his 20-page pretrial

brief probably won’t be necessary. No one suggests that a lawyer

should strive for settlement now or explains how to get there. Liti-

gation often gives lawyers tunnel vision in which the light at the

end is a verdict, but verdicts are increasingly rare.

Plaintiffs’ lawyers often forget their primary objective is to com-

pensate their clients for injuries. Defense lawyers forget their goal

is to minimize their clients’ financial losses. For a plaintiff, a

$100,000 settlement before filing may be a greater success than a

$150,000 verdict three years later. Both sides will most likely save

money. The plaintiff may net more, and the defendant will avoid

legal fees. The time and aggravation saved is priceless.

Consider the parties’ emotions—and the impact of waiting for

and then getting a trial result. How will a husband endure years of

anger waiting to confront the physician he blames for the loss of his

wife? How will the doctor deal with a claim that he caused a patient’s

death? What if he is found liable and his picture dominates the evening

news? How will he explain this to patients, colleagues, his kids?