From the Bench: The Dos and Don’ts of Settlement Conferences
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I have conducted hundreds of settlement conferences as a magistrate judge and observed many things lawyers do to enhance the settlement process—and just as many done to impede it. Obviously, judges have their own preferences in every aspect of litigation, and settlement conferences are no exception. The list below of the top 10 dos and don’ts, in no particular order of significance, thus reflects my own particular practices and procedures. It is, of course, always advisable to obtain information in advance about the preferences of the particular judge who will be presiding over your settlement conference by reviewing the judge’s individual practice rules and, if possible, talking to other lawyers who have had settlement conferences with that judge. With that caveat, here goes:
- Think about the case from the other side’s perspective.
- Don’t wing it.
- Bring documents and key evidence.
- Be as candid as possible in any pre-settlement submissions to the court.
- Be prepared to make an opening statement.
- Make a demand and engage in real negotiations before coming to the courthouse.
- Don’t bring someone without ultimate authority to settle.
- Don’t make the court manage your client’s expectations.
- Anticipate all of the material terms of the settlement before the conference.
- Don’t just come with a bottom line—be willing to be flexible and creative.
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