In-House Counsel

'No More Negotiating, Let’s Take This Thing To Court!'

Some advice on how to walk a client off the trial court ledge and back into a settlement.

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No matter where you attended law school, I would bet your first Civil Procedure class bore some striking similarities to mine.

You were taught the adage that trials are failed settlements. Told that settlements occur in over 90 percent of cases. And reminded that very few of us young law students would actually ever do trial work, but the class was nonetheless important as it appears on the bar exam.

Fast forward many years later, and while I can still recall that first class, no matter how hard I try, I can’t recall any tips from the professor on how to actually guide a stubborn client into accepting a settlement in the first place.

Recently an executive at one of our hospitals professed she had grown tired of ongoing settlement negotiations on a pending case.

“No more negotiating, let’s take this thing to court,” she said very matter of factly during a recent meeting we had called to update her on the status of the case.

To support her decision, she reminded the group of how long we had been attempting to settle to no avail and that she was convinced a court could settle the matter more expeditiously and cost-effectively than our current path forward.

From her perspective, I could see where she was coming from. We had been in settlement negotiations for months on end and had made little outward progress. All she was hearing from us during our regular meetings was that we needed more time. All the while we continued to devote our limited in-house resources to the case when we could be attending to other matters.

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And while it was hard to argue with her logic, in my opinion, this dispute needed to be settled outside of court.

Despite failing to have been taught the best way to walk a client off the trial court ledge and back into a settlement, I was able to do just that with our executive. She acquiesced to my plea for more time and, thankfully, we were able to settle the case to her satisfaction shortly after the meeting.

Although my Civ Pro class may not have provided guidance on how to direct a client to settlement, upon reflection, I believe there were three things that helped buy my team and I the time we needed to settle the case that are worth sharing:

  1. Set a realistic expectation concerning the speed of a trial court, and possible appeals. While our executive believed a trial court might be able to resolve the matter in a day, she was unaware just how long it may take before your day in court might actually come, and that’s before an appeal. After walking her through the likely time tables, the few months we had spent on settlement negotiations seemed like a drop in the bucket.
  2. If you think settlement negotiations are expensive, wait until trial court. Although our executive was correct in calculating our lost productivity spent on this case, she did not appreciate just how quickly expenses could rack up if we hit a trial court. From expert witnesses to possible outside counsel, allocating a couple of in-house counsels to settlement talks was a relative bargain.
  3. Don’t forget negative press. When you are in settlement discussions, by and large the public and press may be unaware of the pending dispute, but the moment you file in court, you can bet the public spotlight will start to shine down. By continuing our settlement negotiations, we were able to keep our client out of the public limelight.

Admittedly the foregoing are rather basic and elementary suggestions to my fellow attorneys, but you might be surprised how little your non-legal clients or colleagues know about the legal process.

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A simple explanation just may save you some painstaking time in court later.

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].

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