Arbitration & Mediation

What it Takes to Settle a Case is What it Takes to Be a Great Trial Lawyer

By Victoria Pynchon

Getting Your Ducks in a Row

Check out Day on Torts for What it Takes to be a Great Trial Lawyer.

Why are these abilities the same as those required to settle a case on the most favorable terms? 

Because trial is the Best Alternative to a Negotiated Agreement. 

If you don't have your trial ducks in a row and can't convince the other side that you're prepared to try the case -- and try it to a highly favorable judgment in your client's favor -- you've got -- sorry to use the term -- squat for bargaining power.

"Show me the salesman," said a savvy and seasoned defendant recently, "and I'll tell you what I'm willing to pay him for his case."

And while we're talking sales -- why is it that no one ever brings demonstrative exhibits to a mediation?

Hand me a visual diagram of the parties and the facts (including the facts that are bad for you).  The chart or diagram should "connect the dots" in the way that is best for your client. 

During the mediation, repeatedly refer me to that diagram.  

When I was litigating insurance coverage cases with hundreds of millions of dollars at stake, I arrived at every oral argument with a color-coded coverage chart representing my client's position on the issue at hand -- like whether the policy holder was required to horizontally exhaust coverage before any of the excess carrier limits would be exposed.

For reasons I never understood, opposing counsel chronically complained about this last-minute demonstrative exhibit motion practice of mine but never brought competing charts into the courtroom. 

Because the Judge -- one of the best on the L.A. Bench -- needed the coverage chart to make sense of the oral arguments, she always denied Plaintiff's request  to disregard them.  More importantly, she spent nearly the entire course of both parties' presentations checking my coverage chart to understand their position -- which position the chart contradicted.    

This is not rocket science.

I genuinely believe that I won a series of successive motions, culminating in a successful summary judgment motion, against a formidable adversary because of those darn color-coded charts.

Though I'm deeply committed to maximizing the value to be obtained in any settlement for both parties, like that Judge, I am subject to persuasion, fallible human being that I am. 

Take advantage of me.  It's your job!

See e.g., Visual Persuasion in the Law and this series of books by Frank D. Rothschild on Power Point for Lawyers and others. 

Full post as published by Settle It Now Negotiation Blog on January 07, 2008 (boomark / email).