ADR & Settlement (Series: Newbie Litigator School)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Adam Hirsch – Roetzel & Andress
Panelists:
Jason Rubin – Goldberg, Miller & Rubin
Steven Reingold – Saul Ewing Arnstein & Lehr, LLP
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ABOUT THIS WEBINAR:
ADR & Settlement
The vast majority of cases settle before they reach trial. This webinar covers
negotiating a successful settlement for your client, either privately or through
mediation. Panelists also discuss mediation basics and presenting an effective case
to either a mediator or the opposing party.
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ABOUT THIS SERIES:
Newbie Litigator School – Fall Edition
This webinar series is one of several series (together with the other “Newbie Litigator
School” series) that Financial Poise designed specifically for attorneys who are just starting
to get involved in civil litigation or who could use a refresher on some litigation
fundamentals. The purpose is to introduce you to different components and phases of
litigation, from the basic rules of civil procedure and evidence, to dispositive motions,
through trial, and on to appeal and post-judgment collection work. Each episode is
delivered in Plain English understandable to business owners and executives without much
background in these areas. Yet, each episode is proven to be valuable to seasoned
professionals.
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EPISODES IN THIS SERIES
9/18/19 Episode #1:
TROs and Preliminary Injunctions
10/16/19 Episode #2:
Evidence Rule Refresher
11/13/19 Episode #3:
ADR & Settlement
1/29/20 Episode #4:
Anatomy of a Trial
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #3:
ADR & Settlement
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SETTLEMENT BASICS
• Most cases filed in the United States settle either through private efforts of the
parties or through mediation
• Strategic use of settlement discussions can end a dispute before the costs
outweigh the benefits of proceeding for all parties
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SETTLEMENT INFLECTION POINTS
• Certain stages of litigation lend themselves more to settlement than others.
Typically, settlement opportunities arise when certain costs have been
completed or not yet spent:
✓ Following a grant/denial of a motion for preliminary injunction
✓ Following a denial of a motion to dismiss
✓ Following the close of certain phases of discovery
✓ Following summary judgment briefing
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PREPARING FOR SETTLEMENT OR
MEDIATION
• Set expectations with your clients
• Prepare clients for what their role will be in either private settlement talks or in
mediation
• Negotiate with opposing counsel what types of disclosures, documents, other
information will be exchanged ahead of any settlement discussions
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PREPARING FOR SETTLEMENT
DISCUSSIONS
• Know how to evaluate the strengths and weaknesses of your case
✓ Strong on the merits, but expensive to get to resolution?
✓ Need expert witness testimony to prove portions of your case?
✓ Recognize the difference between proving liability and proving damages.
Even where liability is near-certain, damages may be low and thus a
settlement may make sense for both sides.
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TALKING TO YOUR CLIENT
• Discuss with your client what their true aims are in litigation
• Make a decision tree with costs of various stages of litigation and potential
outcomes
• Manage expectations about cost in terms of time and money before the case is
resolved
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POSITIONING YOURSELF IN
SETTLEMENT DISCUSSIONS
• Evaluate your initial offer/counteroffer critically
• Attempt to expand the pie with potential non-monetary settlement offers as well
as monetary offers
• Focus on interests and not positions to give best chance at resolution
• Sell to the other side why your offer will serve their interests
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POSITIONING YOURSELF IN
SETTLEMENT DISCUSSIONS (cont’d)
• Don’t reflect an unwillingness to proceed with your case if necessary
• Don’t fall in love with your position; maintain distance and skepticism
• Know when to walk away from settlement discussions
• Know when to pursue assistance from a neutral third party such as a mediator
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OFFERS OF JUDGMENT
• Available in federal proceedings and in some states
• Allows defendants to attempt to settle cases early for a reasonable value
• Federal Rule of Civil Procedure 68(a): At least 14 days before the date set for
trial, a party defending against a claim may serve on an opposing party an offer
to allow judgment on specified terms, with the costs then accrued.”
• (d): “if the judgment that the offeree ultimately obtains is not more favorable
than the unaccepted offer, the offeree must pay costs incurred after the offer
was made.”
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OFFERS OF JUDGMENT (cont’d)
• Essentially, a defendant can make an offer of judgment to a plaintiff that, if
refused, can be used to force the plaintiff to pay costs for all litigation that
occurs following refusal if the plaintiff recovers less at trial than the offer.
• Defense counsel should ensure that both costs and attorneys’ fees are explicitly
included in the offer of judgment or risk facing an accepted judgment plus a
petition for attorneys’ fees from the plaintiff
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SELECTING A MEDIATOR
• Ensure that potential mediators are familiar with the subject matter of your
case.
• Understand the mediator’s approach – facilitative vs. evaluative
• Perform due diligence to see if there are potential conflicts or biases. Use
Google, LinkedIn, etc. to research past work and connections.
• Ask colleagues for any information on the mediator choices prior to selection
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PRE-MEDIATION
• Work with opposing counsel and the mediator to shape the structure of the
mediation
• Decide on any documents or other information to be exchanged
• Agree upon the form of any mediation statements/position statements
• Make sure persons with authority will be present at mediation
• Potential meetings with the mediator to flesh out positions of the parties, as well
as strengths and weaknesses
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POSITION STATEMENTS
• Know your audience – likely more important to convince the other side of the
merits of your position than to convince the mediator
• Consider letter your client present your position statement. For certain cases, he
or she will be more persuasive than you.
• Include legal citations if helpful and requested by the mediator (retired judges
might be more likely to want law included)
• Consider sending a private position statement to the mediator as well as a
“public” statement to be seen by the other side
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MEDIATOR STYLE
• Usually fall into two categories: facilitative vs. evaluative
• Evaluative: takes more control of the mediation, willing to give more opinions on the
strengths and weaknesses of each party’s position
✓ Sometimes will offer a prediction of the likely outcome in litigation
✓ This type of mediation might occur more frequently in pretrial conferences with
judges
✓ May feel more like non-binding arbitration than mediation
✓ Offers an independent evaluation of each party’s position that may move them
more towards a settlement
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MEDIATOR STYLE (cont’d)
• Facilitative style: encourages the parties to form their own views of the merits of
each party’s position
• Mediator aids in identifying areas of dispute so parties in joint session and in
caucus can work towards finding common ground
• Leads to the parties being more in control of the mediation
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MEDIATION FORMATS
• Mediators will often use two different formats during the mediation: joint
sessions and party caucuses
• Will often start with a joint session, then move into party caucuses
• Mediators will sometimes shuttle back and forth between party rooms to
discuss movement by one party or another
• May also bring the parties back together at various points to highlight areas of
agreement
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JOINT SESSIONS
• Joint sessions:
✓ Allow the parties to all meet face to face and give statements regarding their
positions
✓ Puts all decision makers in one place to all hear assessments of each side’s
position
✓ May allow for some venting by the parties themselves
✓ Counsel clients to avoid vitriol in their own statements so as not to poison
the mediation environment
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PARTY CAUCUS
• Party caucus:
✓ Parties will retreat into separate rooms with counsel and discuss issues
separately with the mediator
✓ Mediator can hear the positions of each side frankly and offer their own
views
✓ Mediator can also convey information to and from the other side
✓ Remember: the mediator is playing a role. Evaluate facts and
persuasiveness, not sincerity
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ROLE OF INSURERS
• Know who your decision maker is – the insurer or the client
• Know who the other side’s decision maker is, too.
• Some insurers have final say over any settlement vs. “reasonable approval” of
settlement terms
• Some mediations conducted by judges require direct participation by insurers
with full settlement authority
• Some issues may arise if the insurer wants to settle and the party doesn’t or vice
versa
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JUDICIAL SETTLEMENT
CONFERENCES
• Judges will sometimes offer pretrial settlement conferences with parties
• This can occur either with your trial judge or with another judge
• Try to proceed with a settlement conference with a different judge than the one
trying your case to avoid prejudice in case the litigation proceeds
• In federal court, this will often occur with a magistrate judge
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IF YOUR CASE DOESN’T SETTLE
• All is not lost – mediation or settlement discussions will have at least given you
a better idea of the other side’s views of the case
• Depending on the depth of pre-settlement information and document
exchanges, you may have additional lines of inquiry for discovery
• Can still attempt to settle prior to trial, typically at the next leverage point of the
case
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ABOUT THE FACULTY
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Adam Hirsch – AHirsch@ralaw.com
Adam is Of Counsel with ROETZEL, Chicago and focuses his practice on commercial and
business litigation, representing a wide variety of clients ranging from individuals to small
business owners to large corporations. He has a particular focus on investment disputes
and business fraud claims, and has represented investors and investment companies as
plaintiffs and defendants in lawsuits around the country. He regularly writes and presents
on current issues relating to business fraud. Adam also has extensive experience litigating
contract disputes, and has argued and tried multi-million dollar contract issues before
judges and juries nationwide. He also has experience in advising clients in employment
disputes relating to matters such as separation, severance, and non-compete agreements.
Before joining ROETZEL, Adam was a partner at Robinson, Curley & Clayton and an
associate at Jenner & Block in Chicago, where his practice focused on complex business
litigation.
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Jason Rubin – JRubin@gmrlawfirm.com
Jason W. Rubin, a Goldberg, Miller & Rubin partner, concentrates his practice in products
liability and toxic torts and has managed the firm’s well-regarded mass tort department for
two decades. Jason represents several clients in their toxic tort matters filed in
Pennsylvania, New Jersey, and New York and has tried several cases to verdict. His success
has been recognized by Thomas Reuters which has designated him a Super Lawyer in
products liability in 2016, 2017, 2018, and 2019.
Jason devotes a portion of his practice to mediation, arbitration, and pro bono service and
is on the Philadelphia Court’s Honor Roll for his pro bono service. He serves at least
monthly as a Judge Pro Tempore for the Philadelphia Court of Common Pleas Civil Trial
Division and volunteers with the Philadelphia Bar’s Fee Dispute Program as well.
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Steven Reingold – Steven.Reingold@saul.com
Steven Reingold handles a broad array of commercial litigation, business bankruptcy, and
bankruptcy litigation matters for clients throughout the country. Steven’s litigation
experience includes participating as lead counsel or co-counsel in complex commercial and
bankruptcy related disputes resolved through negotiation, mediation, arbitration, and
litigation. In his bankruptcy practice, Steven represents debtors, official creditors’
committees, trustees, creditors, and other interested parties in insolvency proceedings
involving companies of varying sizes and industries.
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QUESTIONS OR COMMENTS?
If you have any questions about this webinar that you did not get to ask during
the live premiere, or if you are watching this webinar On Demand, please do
not hesitate to email us at info@financialpoise.com with any questions or
comments you may have. Please include the name of the webinar in your email
and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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ABOUT FINANCIAL POISE
DailyDAC LLC, d/b/a Financial Poise™ provides
continuing education to attorneys, accountants,
business owners and executives, and investors. Its
websites, webinars, and books provide Plain
English, entertaining, explanations about legal,
financial, and other subjects of interest to these
audiences.
Visit us at www.financialpoise.com.
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