That’s Not My Department

Too often, tort litigators focus on how to win their case at trial, while ignoring opportunities to reach settlement by educating themselves about the other side’s motivation and readiness.

What is needed, in my view, is a more holistic approach, such as that discussed about a year ago by John DeGroote over at Settlement Perspectives. John started an excellent series of posts on the subject of Early Case Assessment ("ECA"). For John, "the definition of an ‘Early Case Assessment program’ is a disciplined, proactive case management approach designed to assemble, within 60 days, enough of the facts, law, and other information relevant to a dispute to evaluate the matter, to develop a litigation strategy, and to formulate a settlement plan if appropriate." See "Easier Said Than Done: Early Case Assessments Part I," posted October 22, 2008. John’s point is that many cases can be assessed and disposed of at an early stage by following a concentrated, structured approach to gain essential information quickly.

One of the points John makes is that to gain the greatest advantage from an ECA program, your team’s focus must be external, as well as internal, and include an analysis of the case from the other side’s point of view. By taking this approach, "[y]ou’ll know more about what your dispute is worth to the other side, and you’ll be in a better position to get there at every step in the process." See e.g., "Better Settlements From Better Information: Early Case Assessments IV," posted November 7, 2008.

Most tort litigators are quite skillful at winkling out information regarding the strength of the other side’s case. Over the years they have perfected their discovery techniques and their checklists so as to learn everything they need to know about the facts of a case and what a jury might do with them.

Fear of what a jury might do with a given set of facts may be the primary motivation to settle a tort case, but there is often quite a bit more that ought to be considered.

Where many litigators tend to be lax is in learning what kinds of things other than the strengths and weaknesses of the case at hand are likely to motivate the other side to settle. What the plaintiff may need money for, e.g., may sometimes be touched upon by the defense, but there usually isn’t a concerted effort made to get detailed information on the subject. Likewise, the defense is not usually proactive in exploring the chances that liens on the proceeds of a future settlement may be compromised. Such matters are normally regarded as the responsibility of the plaintiff.

Conversely, matters such as the size of the defense carrier’s current caseload in its local office, or plans regarding consolidation of claims offices probably won’t be on the plaintiff’s radar screen, even though they may have a substantial bearing on the company’s motivation to settle.

To maximize chances of settlement, all counsel involved in litigation should not only ensure that their side has all of its ducks in a row before mediation, but should also be proactive in addressing the other side’s readiness as well. Settlement is everybody’s department.