Settlement requires cooperation among all participants in serious accident litigation. The parties, their attorneys, and the judicial system itself are all essential elements of this process. To encourage fruitful talks, an emphasis on settlement must prevail. When it does not—when the settlement system fails—one or more players are usually not performing.
The final decision to settle belongs to the client, who may or may not be in a negotiating frame of mind. In viewing this process, there are several reasons why cases stall during the settlement process. Once the parties determine what the barriers to settlement are, a strategy may be adopted to work around or overcome those barriers.
Five possible reasons for cases not settling are:
1. Lack of Understanding—Parties will often emotionally commit to trial, where their grievances will be heard, sympathized with, and publicly redressed. Compromise, as many see it, is unprincipled.
2. Lack of Information—Any evaluation system should be designed to supply the best information possible under the circumstances. Counsel’s failure to supply the necessary information to make judgments regarding settlement, or the client’s failure to recognize the importance of that information results in no settlement being reached.
3. Lack of Attorney Support—Settlement requires the finest of attorney skills. For a settlement to have any chance for success, a lawyer must take the lead, and support the settlement effort. Once the choice is made to explore negotiating serious accidents, the lawyer has a duty to carry out the negotiations with all the skill and competence that can be mustered.
4. Lack of Communication—A lawyer’s failure to convey the evaluation has the same effect as if there had been on evaluation at all. This evaluation must not only be communicated to the client but it must be explained so that the client understands the reasons for the lawyer’s recommendation. All serious accident cases require a thorough examination.
5. Lack of Appreciation of the “Economics” of Settlement—Recently I was involved in a lively trial in which the opposing counsel rejected a sizeable settlement offer. Only his stubborn attitude obstructed settlement. It made little sense, since even under the best of circumstances, the opposing party could not have done as well by going to court and facing a lengthy trial, court costs, the prospects of a time-consuming appeal, and the loss of use of the settlement proceeds in the interim.
2. Lack of Information—Any evaluation system should be designed to supply the best information possible under the circumstances. Counsel’s failure to supply the necessary information to make judgments regarding settlement, or the client’s failure to recognize the importance of that information results in no settlement being reached.
3. Lack of Attorney Support—Settlement requires the finest of attorney skills. For a settlement to have any chance for success, a lawyer must take the lead, and support the settlement effort. Once the choice is made to explore negotiating serious accidents, the lawyer has a duty to carry out the negotiations with all the skill and competence that can be mustered.
4. Lack of Communication—A lawyer’s failure to convey the evaluation has the same effect as if there had been on evaluation at all. This evaluation must not only be communicated to the client but it must be explained so that the client understands the reasons for the lawyer’s recommendation. All serious accident cases require a thorough examination.
5. Lack of Appreciation of the “Economics” of Settlement—Recently I was involved in a lively trial in which the opposing counsel rejected a sizeable settlement offer. Only his stubborn attitude obstructed settlement. It made little sense, since even under the best of circumstances, the opposing party could not have done as well by going to court and facing a lengthy trial, court costs, the prospects of a time-consuming appeal, and the loss of use of the settlement proceeds in the interim.
