Settlement Counsel

 

Litigation is hard work, and it imposes burdens on the client and on its lawyers. Frustration with the pace of proceeding, perception that the other side takes unprincipled decisions, personality clashes, and the crushing pace of meeting court deadlines can render it very difficult to hit a "time out" button to discuss settlement. But no client should rationally believe that no possible settlement is more advantageous than is a full-blown trial, for lots of reasons.

 

Trials involve uncertain risks from the involvement of judges and juries. Even a final judgment can then be appealed and possibly remanded for trial, tacking years onto a dispute. Business needs may have changed since the litigation "war" got started, but the combatants are enmeshed in driving the war to its conclusion.

 

Where the interpersonal dynamics have been testy among the lawyers or principals, where business leaders would be better served by focusing on new challenges than by being diverted by a lingering dispute about something that happened in the past, it may be time to bring in a fresh face without jaundiced eyes for the purpose of settlement only.

 

The Mayerson Firm PLLC can be retained as settlement counsel for this purpose. Our long experience in pursuing both litigation and negotiation tracks (including litigating in some very "bloody" cases alleging all sorts of ethical misconduct, lying to the court, involvement of bar authorites, sanctions imposed on parties and their lawyers) makes us well understand how your advocate feels and thinks about the other side, and how much she or he wishes to champion the client's cause.

 

Being retained as settlement counsel means that The Mayerson Firm PLLC does not enter an appearance in the case, but only liaises with the other side in the context of settlement negotiations.  Working closely with the client's counsel to be sure of the understanding of the factual and legal complexities, settlement counsel's role lies somewhere between an unleashed-zealous-advocate-for-the client and a neutral, disinterested mediator.  

 

The experience we have in negotiating large-scale resolutions in complex matters for our own clients means that we can bring to the table the sophistication and ability to pursue the client's goals, but denuded of some of the psychic baggage of long-time participants; settlement counsel also is less caught up in the particular dynamics and pathologies in the case, and in this capacity the Mayerson Firm does not need to be unduly chary of how settlement discussions, if unsuccessul, might impact how a major discovery dispute is resolved down the road (as lead counsel does).  

 

By bringing in settlement counsel, the client is assembling a best-of-breed team, using the firm or firms with which it has been working in the litigation and directing them to keep litigating while simulataneously engaging an experienced lawyer who knows how to achieve settlement for clients and in the particular instance one not so enmeshed in the day-to-day chafing that lawyer-combantants encounter.

 

Of course, engaging settlement counsel can be seen as a useless step in adding yet another layer on the team; and the client and settlement counsel must be clear to lead counsel -- and most especially the other side -- that bringing settlement counsel in does not cast any doubt on the quality and vigor of the litigation team. These are all matters that The Mayerson Firm PLLC can successul navigate, in part because the shoe has been on the other foot, so we understand the dynamics of all sides.  

 

Marc published a detailed look at the dynamics of settlement negotions in complex insurance matters, including the dynamics when several carriers are involved in the matter as well as the looming, unspoken influences of their carriers' own reinsurers from whom the (settling) carrier will ultimately seek indemnification; Marc's article also specifically identifies provisions that should be considered in insurance settlements, so that a process of preparing the final agreement remains a joint exercise in articulation rather than a deferred round of thrusts and parries.  

 

Thus, The Mayerson Firm PLLC can be a one-stop shop, when the matter is turned over to it to litigate, arbitrate, or settle, or can be retained more narrowly to assist the client and inside- and existing-outside counsel in creating a reasource devoted solely to driving torward a settlement, led by an experienced lawyer not scarred by (or scared of) this particular litigation war. 

 

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