Thursday, August 28, 2008

		Parlez-Vous Plaintiff? Understanding the Language of Settlement By David L. Winter The primary reason cases do not settle is a failure by opposing counsel to communicate. In many cases, the failure to settle is traced directly to the inability of counsel to describe the case in terms that the other side understands. If settlement is your goal, convincing the other side means addressing the opposition’s interest, and attacking his comfort level. To do so requires understanding the basic philosophy and terminology that underlies a plaintiff or defense case. Litigation Philosophies In any claim that results in litigation, there is a flaw. A case generally proceeds to litigation because either the liability evidence is flimsy, or the damage evidence is weak or speculative. In either instance, the weakness feeds directly into the defense analysis of the case. Unless careful in their approaches, opposing counsel can set up barriers to successful settlement. To a plaintiff, a case is all about potential. "This could happen if . . . ." Conversely, the defense approach is what will not happen. "This can’t happen because . . . ." Until the two sides begin to speak the same language, or at least use terms that the other will appreciate, the case can not settle. Instead, because they do not understand the opposing viewpoint, counsel call into question the intelligence, training, or motivation of their opponent. When that happens, settlement fails. Buzzwords Of The Plaintiff’s Side There are some terms that simply by being mentioned can sabotage the potential for settlement. Here are some of the "plaintiff buzz words" that preclude success. "Consider the cost of defense." This phrase is often heard in cases that are expensive to litigate, and have a weak liability link. Because the plaintiff looks at what will happen even if the defense wins, i.e., the expenditure of a large sum of money to defeat a groundless claim, he believes that by merely filing and asserting the claim a portion of that "cost of defense" should be paid. Conversely, the defense attorney is trained to look for "frivolous" or otherwise weak liability cases. The cost of defense is not seen as a burden, but rather as an obligation, an obligation to defend our legal system, and to preclude misguided individuals from filing laughable cases. To hear the term "what about the cost of defense" is perceived as the legal equivalent of a shakedown. Although many clients do consider the cost of defense as one factor in a settlement, no settlement succeeds where it is the primary factor. "Look at the risk." Often times, a case is filed that has very little liability exposure, but huge damage potential. Plaintiff’s counsel argues that the case is worth millions, and even a small fragment of that is a lot of money. The defense attorney does not look at the case in terms of "potential" for it is not the potential verdict that he fears. Rather, the defense concern is the realistic risk of loss. If plaintiff’s counsel seeks to succeed in settlement, he must convince defense counsel that there is a significant risk of liability, not merely the potential for a large verdict. Understanding The Defense Perspective. Defense counsel, by nature, do not look at "what could be." They are trained to pick apart a case, piece by piece, to determine what should happen. Consequently, to convince the defendant to settle, plaintiff must establish a realistic fear of loss. This realistic fear of loss is based not on the potential amount of the loss so much as it is based upon the probability of any recovery. It is incumbent upon plaintiff to first establish a viable legal theory. The best way for plaintiff to establish their case is to begin with the jury instructions and determine whether they have the evidence to support their theory. If so, this is a monumental step forward. By presenting that portion of the case, plaintiff moves from what "could" happen to what "should" happen. Merely having information that would establish the claim is not sufficient. What counsel must next focus on is admissible evidence. It is altogether common for clients - on both sides - to misconstrue what evidence is truly admissible. It is unforgivable for an attorney not to know. Thus, in evaluating a settlement demand, and creating a settlement posture, plaintiff’s counsel must consider how his evidence will be presented. If the sole support for a claim is hearsay, and that hearsay is inadmissible, there is no case. The fact that you can prove your case on the playground does not mean that you can prove your case in the courtroom. It is defense counsel, the nitpicker, who will hold you to that obligation. The "So What" Factor Defense counsel are well versed in the use of demurrers. They are taught from day one the benefit of standing before the court and saying, "even if all plaintiff says is true, so what?" Yet defense counsel does not abandon their demurrer manner of thinking simply because the case moves past the pleading stage. For settlement to occur, plaintiff must leap over the "so what" hurdle. The defense has buzz words that clearly indicate their utilization of the "so what" defense. However, frequently, plaintiff counsel misconstrue what they are hearing. The key words are "causation" and "speculation." These terms are not the same, and have to be addressed separately for settlement to proceed. To a defendant "causation" means merely that regardless of the dastardly deeds of the defendant, and horrific damages, that the damages were not caused by the dastardly deeds. Conversely, "speculation" means that the dastardly deeds caused some damage, but what damage was caused is purely speculative. Plaintiff counsel, to succeed, must distinguish between the two. Solving the Settlement Puzzle To resolve a case, counsel must work towards common ground. This requires learning to speak the same language, to communicate in a manner that attracts the interest of the other side. For a plaintiff to say "it could happen" is to throw a red flag in front of the charging bull defendant attorney. The following example, though somewhat farfetched, illustrates this point. When I was in high school, Chris Everett was first making a name for herself on the professional tennis circuit, and was the darling of the media and the public. She was also my age. One day a friend and I discussed an ideal summer job, following the women’s professional tennis tour until Chris Everett fell in love with one or the other of us, thereby allowing one to marry into fame and fortune, and the other to ride on his coattails. Realistic? Absolutely not. But, "it could happen." To carry the analogy further, had it happened, my friend or I would have been very, very rich. Neither of us would have earned those riches, and were one to analyze our chances for success, one would conclude that both the potential to convince Chris Everett to fall in love with us as well as with any potential economic gain was pure speculation. Conversely, to tell us, boldly to our faces, that we were nuts, living in a dream world, and fantasizing, would not have been accepted. A better approach would be to list, analytically, the difficulties in achieving our goal, setting aside - at least for the moment - the potential recovery. The same approach is the key to settling cases. The attorneys must learn the proper language, speaking to opposing counsel in a tone and terms that he or she can understand. By doing so, one can unlock the puzzle of settlement, and avoid having to answer that question, ‘why didn’t my case settle?"

	Copyright © 2008 Moore Winter McLennan, LLP