ADR CORNER
How to Make Your Client Amenable to a Mediated Settlement
KENNETH D . STERN
Let ’ s face it . When you have the intake conference with a potential new client , you must assure him or her that , by retaining you , s / he would be in the hands of a competent litigator who knows how to try cases . If you don ’ t create a strong impression in that regard , the client will likely head for the door , telling you “ I ’ ll think it over and get back to you ,” to seek an attorney who creates the desired impression .
It is difficult to inform the potential new client in the intake conference that perhaps the case can settle for a worthwhile amount and thereby avoid the time , expense , and uncertainty of going to trial , perhaps two or three years from now , without seeming to create the impression that you might not like to try cases , or that you ’ re not very good at it . However , skillfully approaching the subject can create the impression that you ’ re an experienced warhorse who can get the best possible outcome for your client either in the courtroom or in the mediation room , whichever serves the client the best .
If you ’ re chary of broaching the subject of settlement at the intake conference , fine . Have the client retain you , and await a moment when the client has seen the negative evidence the other side has to present . That moment can be months after the intake conference , by which time you will have also identified evidence and witnesses both favorable and unfavorable to your case .
There is a basic approach to opening the client ’ s mind to the value of a good settlement without making it look as though you ’ re afraid to go to trial . I used this approach when I was litigating and mediating cases before going on the judicial bench , and I use it now as a mediator ; you can use it as a litigator in a way that preserves your appearance as a competent , aggressive courtroom lawyer .
There will be various facts , items of evidence , and potential trial witnesses that will come to light during the discovery process , which are not favorable to your case . Keep your client apprised at reasonable intervals of these developments , as well as those favorable to your case . In these contacts with your client , ask the client questions to elicit more information that will help you assess the strengths and weaknesses of your case and the opposing party ’ s case .
Have the client advise you whether potential witnesses can be shown to have a bias in favor of the party in whose favor the witness would testify . Ask the client such things as what preceded a threatening email your client or the opposing party sent to the other ; what a potential witness could tell the jury that would be helpful or harmful to your case ; are there other potential witnesses who could testify about the adverse party ’ s having acted similarly to others ; the list of issues you could discuss with your client is endless . In these discussions , your client will begin to appreciate that your case is not a slam dunk .
Now you are ready to say something to your client that will underscore the uncertainty of what the outcome of a trial could be . Let your client understand that you are an experienced litigator and a capable warrior in the courtroom , but that the best warrior in the world will not do very well if s / he is armed only with a slingshot and the opponent has a Sherman Tank . Note , if this is the case , that your case has some strong points and good evidence , but that there are weaknesses , and point them out .
Explain the legal concepts that could reduce your client ’ s recovery , such as comparative negligence , or anything the client did that could lead the jury to find that your client was the main cause of the events of which s / he complains and of the resulting damage , or your client ’ s failure to mitigate damages ; or the statutes and / or case law that could limit the client ’ s recovery . If there is a contractual or statutory provision that could render your client liable for the other side ’ s attorney ’ s fees and costs , point this out and note any facts or evidence in the case that could lead to this result .
Explain to your client that , after you win the case , the other side will probably appeal , and the appellate decision might not be announced for as much as a year , and the appellate court might send the case back down for a new trial . Make sure the client understands how much all of that could
PBCBA BAR BULLETIN 7 cost , and that even a successful recovery at trial could be only slightly more , or even less , than the client will have spent on your fees and costs over the years involved .
Having gradually informed your client ’ s perceptions with an understanding of the realities of litigation , you will not have to overcome a naïve client ’ s pie-in-the-sky expectations . Instead , you will have a client who can intelligently discuss with you the question of whether a settlement offer is worth taking .
For additional ADR tips and resources , go to : https :// www . palmbeachbar . org / alternativedispute-resolution-committee .
Since retiring from the Circuit Court bench , Judge Kenneth D . Stern has served as a Mediator , Arbitrator , Special Magistrate , Hearing Officer and Umpire . After law school ( where he was Editor-in-Chief ), he clerked for an appellate judge , served with the Antitrust Division of the U . S . DOJ , and as an Asst . U . S . Atty . in the Southern District of Florida . In 1981 , he came to our county , and practiced civil litigation and criminal defense , in federal and state courts . In 1999 , he was appointed to the bench by Governor Jeb Bush . Judge Stern may be reached at kdstern @ gmail . com or at 561-901-4968 .