Ask yourself this question: If I had someone focused solely on fostering and expediting settlement discussions, would I have a better chance of resolving this case sooner? Would I have a better chance of getting the terms and conditions I need?
Litigation demands constant focus. The contentious nature of most opposing counsel relationships effectively chills and postpones resolution discussions. Very often a client does not want their trial attorney doing anything that might be perceived as taking the pressure off the other side.
Do you really want your trial attorney to “wear two hats?” Can your trial attorney effectively press the litigation agenda and pursue settlement discussions at the same time?
Settlement Counsel allows resolution to be safely and effectively discussed without diluting or undermining the leverage developed by the trial team. Retaining Settlement Counsel sends the right message – as a matter of smart business you are always interested in a principled resolution – but the litigation strategy will not be put at risk.
Most negotiations could be handled by your trial attorney, but would he or she really be heard? Do you want your trial attorney to be put in that position?
This most often becomes a question of when and how you approach resolution discussions and the message you want to send to the other side.
Engaging settlement counsel is not a reflection on the inability of your trial counsel to do anything. It is a strategic decision as to how to approach settlement negotiations without diluting the focus and impact of your trial team.
Cost is always a priority in litigation. Settlement counsel can be retained on an hourly basis, a fixed fee, or on a success fee basis (the fee is earned only if the matter is settled). The compensation/cost decision invariably comes down to a discussion with the client about the value-added. The nature of the case and the client’s objectives frame the engagement terms and the cost of settlement counsel is seldom a material factor in the retention decision.
Is there something you believe could be done that is not getting done due to the press of the litigation or other factors? Is the relationship between opposing counsel so contentious that they have difficulty communicating on litigation matters let alone settlement? Have settlement discussions begun, but keep getting delayed by upcoming litigation events? Are you hearing that it is just not “the right time” to consider resolution discussions? If some or all of these are answered in the affirmative, you should consider talking with Settlement Counsel – and your trial counsel – about the role Settlement Counsel might be able to play in your case.
Any reluctance of trial counsel to accept involvement of settlement counsel usual stems from a lack of understanding of the role or a fear that it means their client has lost confidence in the trial firm. Trial attorneys who have worked with Settlement Counsel know that settlement counsel supports and leverages up trial counsel – and are in a position to press the resolution agenda when the litigation strategy would make that uncomfortable for the trial attorney. It is important for the client and the trial counsel to be aligned and Settlement Counsel assists with that alignment. If alignment is not possible, both the client and the Settlement Counsel must evaluate whether Settlement Counsel can really be effective in such a case.
The client always makes the decisions – and does so with the advice of its trial counsel. Settlement Counsel will provide their input, including an independent risk assessment and related recommendations regarding a resolution plan. The perspective of Settlement Counsel adds to the resources available to the client. The result – a coordinated effort that optimizes litigation and settlement strategies. That focus brings results.