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Settlement Counsel: Is It Right for Your Business?

If your business plan for the upcoming year includes increasing your litigation budget, read no further. If, however, you are looking for more effective ways to spend your litigation dollars, then hiring settlement counsel may be worth considering.

Consider the Alternatives

These days, there are many alternatives to traditional litigation, including judicial settlement conferences, mediation and arbitration. Another option that has been talked about for years but seldom used is adding a settlement lawyer who is experienced in litigation to your dispute resolution team right from the start. The sole purpose of a settlement lawyer is, as the name implies, to try to settle the case. Given the economic downtown that continues to affect all of us, businesses would be wise to consider hiring settlement counsel as a way to reduce litigation costs over the long term.

Some of you may be wondering how it is possible to reduce legal fees by engaging a second lawyer solely devoted to settling your case. Or, why your trial attorney can't just settle the case alone.

By settling your case earlier in the process (even with two lawyers), you will automatically reduce your litigation fees and related expenses. In particular, you will limit discovery and trial costs while accomplishing what would likely happen anyway, given that well over 95% of all cases settle before trial. Most cases, however, settle only after the bulk of legal fees and expenses have already been incurred.

The question that should be asked in each particular case is whether the captain who leads the troops into battle should also serve as the lead negotiator at the peace talks. Think of settlement counsel as your diplomat for peace throughout the life of your dispute (if that is your business, economic or personal goal). To be sure, it is not that one lawyer is incapable of settling your case. We all know that is possible. Rather, in a particular case, trial counsel may be more efficient and effective when focused solely on litigation/trial strategy, while settlement counsel works to maximize your chances of settlement (thus reducing your business risk to zero) by focusing exclusively on settlement.

A Dual-Track Approach

Practically speaking, settlement counsel works hand-in-hand with litigation/trial counsel, becoming fully versed in the important issues of the case, as well as the information that might be necessary to settle. This team also collaborates closely to manage the litigation/settlement budget.

Settling cases takes patience, a laser-like focus, an understanding of business and human psychology, excellent negotiating skills, and above all, perseverance. Positioning a case for settlement, establishing the structure for successful negotiations and credibly communicating with opposing counsel can (in certain cases) be more difficult when the same lawyer is also taking the deposition of the opposing party's CEO or preparing a motion to compel.

Is this dual-track approach right for every case? No. Should your business consider its potential applicability to a particular case? Absolutely. If you would like to learn more about the role of settlement counsel and the alternative fee opportunities relating to it, please contact your Much Shelist attorney or call me directly.

© 2020 Much Shelist, P.C.


About this Author

Edward D. Shapiro, Much Shelist Law firm, Commercial Disputes Lawyer

Ed Shapiro has been Chair of the firm's Litigation & Dispute Resolution practice group since 2007. Trained as a trial attorney and as a mediator, his practice focuses on the efficient prevention, management and resolution of disputes for businesses, organizations and individuals. Ed’s primary objective is to help clients identify their goals, and then to collaborate with them on business and personal solutions to meet those goals.  

As an experienced litigator, Ed represents clients in state and...