Prepare for trial, but win at settlement; if you're ready to go to court, you may not have to. These strategies for working with your client and the opponent in pretrial negotiations will help you succeed at the bargaining table.

Many new attorneys enter trial practice under the mistaken impression that most cases are resolved in court. They come out of law school ready to right every wrong with a jury trial.

Reality sets in when they realize that it would be impossible to try even most of their cases, that it is often in all the parties' respective interests to resolve the lawsuit without going to trial, and that the judicial system is designed to encourage settlement of disputes. Of course, this cuts against the grain of what being a trial lawyer seems to be about.

The best trial lawyers recognize that good settlements--often in cases that would not succeed at trial--require great skill. Being ready to try the case in court is the first step to getting the best settlement for your client.

Before an adversary--whether it be an insurance adjuster or opposing counsel--agrees to discuss settlement, he or she will obtain as much information as possible about your client's claim. It is imperative that you do the same.

Whether you practice commercial litigation or personal injury law, one axiom holds true: Do not rely on your client to remember or candidly divulge all the facts. Frequently, clients will omit information that might be perceived in a negative light because they think that neither you nor the opposing party will discover it. Sometimes clients take it upon themselves to determine what information is relevant. More often than not, they simply forget. It is your job to uncover these facts early, before settlement negotiations begin. Otherwise, you could quickly wind up on the defensive, jeopardizing the value of your client's claim.

Do not be surprised if your adversary has more information about your client's claim than you do, at least in the initial stages. Insurance adjusters and opposing counsel often have access to more resources, including insurance claims databases. If this is the case, ask for copies of the documents and time to investigate the defendant's position.

Here are some key areas to evaluate when considering the strengths and weaknesses of your case:

Liability and damages. Rarely does a case come along where liability is absolute, damages are catastrophic, and causation is clear. Liability is typically disputed or denied, damages vary, and causation is often challenged.

Planning the right strategy can help you reach a settlement in these situations. For instance, when your client's damages are catastrophic and the defendant's liability is difficult to prove, the best strategy is to emphasize your adversary's risk of incurring a substantial judgment should the case go to trial. The more horrific the accident, the more the average juror will want to find someone at fault.

When liability is absolute but damages are minimal, move the case quickly, spending little of your and your client's time and money. Emphasize the liability and argue that the defendant will clearly be held accountable--that the only question for the jury will be, "How much compensation is appropriate?" You may also emphasize, when appropriate, that the liability is aggravated and will probably enhance the injuries beyond their usual value.

Client history. Is your client litigious? Has he or she brought this type of claim before? Your client's background and litigation history can be a strength or a weakness, depending on the answers to these questions. Discuss this in the initial client interview.

Does your client have preexisting injuries? Again, do not rely on him or her to tell you all you need to know. Often, a client overlooks or forgets that he or she once told a doctor about a backache, stiff knee, or some other ailment during a routine checkup. These complaints can come back to haunt you during negotiations. Carefully read the medical records, paying close attention to handwritten notes, especially those early in the record that might indicate what the patient told the doctor.

Before you enter settlement discussions, have your client list every health care provider that he or she has seen in the past 10 years. If the case warrants it, request the client's medical records from each of those providers.

Also, request the payout sheet from your client's health insurer for several years before the injury involved in the lawsuit. There, you will find virtually every provider your client has visited. More often than not, you will discover that your client missed some names.

Client presentation. Your client's appearance and presentation can determine the outcome of a close case. The opposing party rarely has the opportunity to observe or get to know your client during settlement negotiations or before trial. That is not always a bad thing. However, when your client makes a particularly good impression, make it a point to have the defense meet him or her during mediation or at a settlement conference, for example.

Working with the client

A standard provision in the "Statement of Clients' Rights," which my state's bar requires all clients entering contingency fee agreements to receive and sign, declares, "You, the client, have the right to make the final decision regarding settlement of a case." (1) Preserving this right is an ethical obligation of all plaintiff attorneys. Unlike Frank Galvin, the character Paul Newman portrays in the movie The Verdict--who rejects an offer without consulting with his client--we must obtain settlement authority and convey offers. Unfortunately, many lawyers mistakenly believe that clients will accept whatever settlement they recommend. Although litigators usually are more knowledgeable about a case's reasonable settlement value, what the attorney deems to be fair compensation is irrelevant if the client does not agree.

Keep in mind the following guidelines when working with the client to prepare the case for settlement negotiations.

Do not overvalue the claim. Most trial lawyers approach their cases with energy and enthusiasm. Unfortunately, this enthusiasm sometimes prompts them to overvalue a case when the client first comes through the door. If a client's expectations are inflated, he or she is likely to be dissatisfied with the result, even if you obtain a good settlement.

To prevent this from happening, do not discuss amounts of money--no matter how much the client pressures you--until you know all the facts. Keep in mind that at the initial client interview, you hear only one side of the story. Often, the facts look different once the discovery process begins--suddenly that absolute-liability case with clear causation does not see so absolute and clear anymore.

Explain to your client at the outset that discovery might unveil evidence that reduces the value of the case. Keep him or her informed of any such discovery. Nothing is more difficult than attempting to explain to a client during settlement negotiations why the case is now worth one-fifth of the amount you mentioned at an early meeting.

Familiarize your client with the legal process. Most clients are unfamiliar with the legal system, and they do not understand what types of compensation they are entitled to.

If you want authority from a client to settle a case for a fair and reasonable value, discuss the claim and the legal process with him or her. Explain that the law entitles the client to recover certain damages but not others. Discuss your experience with the type of case. Define the advantages of settlement and trial. Tell your client that if the case goes to trial, he or she will incur thousands of dollars in additional expenses and face the risk of an adverse judgment. These costs and risks might make settlement worthwhile.

Explain all costs. Discuss costs and fees at the initial client interview, and continue to discuss them as the case progresses and before settling any claim. Clients have an amazing ability to forget about costs and fees when it comes time to settle. You can solve this problem by explaining exactly how much compensation the client will actually receive as a result of a settlement offer. Be sure to explain liens--the client must understand that if there is a subrogation claim on the case, these costs might have to come out of the settlement. Specify this, in writing, in your fee agreement.

Never negotiate without authority. This is a cardinal mistake for many reasons. If you agree to settle a case and are forced to recent because your client will not sign the release, you lose credibility.

Again, communication with your client is key. Discuss a settlement offer in great detail: Explain the exact amount that the client can expect after deducting all costs, fees, liens, and so on. All too often, plaintiff lawyers will tell a client that they want authority to settle the case for $200,000, and the client mistakenly thinks that he or she will receive the whole $200,000 on settlement.

Once your client gives you authority to settle his or her claim for a certain sum, confirm it in writing. Explain in the confirmation letter that you and the client discussed the fees and costs associated with the case and that the client has granted you authority to settle the lawsuit for this amount. The few minutes it takes to draft the letter will be invaluable if the client subsequently has a change of heart. If you have concerns about the client, have him or her countersign the letter or sign a document giving you authority to settle the case at a certain amount.

Prepare the client for mediation. Mediation and other types of alternative dispute resolution have played a large role in effectuating settlements in recent years. As mediation has matured--and as the defense bar and insurance carriers have developed their own strategies--cases have increasingly involved more than one mediation session. Prepare your client for what he or she will hear in a mediation session. Make sure he or she understands that you will present the strongest points of the case, not the weakest. Otherwise, the client might get a wrong impression of the case's strength because you don't deal with the weaknesses in mediation.

Explain that the mediation involves gamesmanship and that the initial demand is generally more than you expect in settlement. The initial demand is a starting point that offers you leverage. Of course, sometimes you discover additional information that warrants payment of your initial demand.

Working with the adjuster

An adjuster sets a reserve--the amount that the defense initially claims a case is worth--based on the information the plaintiff attorney provides. Many trial lawyers dictate a quick demand letter outlining the high points of the case and forward it to the adjuster with a medical record or two.

A hasty letter typically does not get the job done. It sends the wrong message about your abilities and resolve.

To get the results you want, prepare a detailed settlement-demand package that includes:

* a synopsis of the case facts

* an explanation of legal liability

* a detailed explanation of the economic and noneconomic damages, as well as how your client's life has been affected by the injury

* photographs of the injury and the accident scene

* investigative reports prepared by law enforcement officials or any public agency

* medical reports, bills, and expenses

* any other documents that support your claim.

Hold off on providing the names of witnesses until you are not concerned about whether they are contacted by the defense. Once you disclose their names or provide witness statements, nothing prevents opposing counsel from speaking to them. Under some circumstances, that might get witnesses to change or modify their earlier statements.

An adjuster will contact you after he or she has reviewed the demand package and will typically submit a lowball offer. How you respond will make an impression on the adjuster. Chances are that the adjuster has had the case evaluated by an outside counsel who specializes in this area of law, or an expert in the relevant field, and has been advised on how to attack the claim. If the adjuster focuses on a weakness in your case, acknowledge it, but downplay the weakness and shift the focus to your case's strengths. Doing so enhances your credibility, which is vital in negotiations.

Settlement negotiations should not be confrontational. It helps to remember that the adjuster negotiating for the opposing party is doing a job, just as you are, and that he or she is constrained by supervisors and committees. The adjuster has probably been given a number and told to settle the case at or below that amount. The adjuster's hands are tied, and you will not gain any ground by claiming that his or her position is ridiculous.

Instead, when it appears that the adjuster is unwilling or unable to negotiate any further, offer a reason for the other party to increase the offer. Provide additional photographs, witness statements, and other information that the adjuster can present to his or her supervisor and obtain authorization for a larger settlement.

It is difficult to consider yourself a trial lawyer when most of your cases settle. The reality is that the better prepared you are for trial, the more likely it is that your case will settle. The opposite might also hold true: If you prepare a case for settlement, it will probably be tried.

Great settlements come from great lawyering, not luck. Settlement is an art--not a science--that requires thorough preparation and discovery.

Note

(1.) FLA. BAR, A CONSUMER GUIDE TO CLIENTS' RIGHTS (2001) available at www. flabar.org (click on "Consumer Services," then "Consumer Pamphlets," and finally "A Consumer's Guide to Clients' Rights").

John Elliott Leighton is a partner with Leesfield, Leighton, Rubio, Mahfood & Boyers in Miami.