1 PerspectiveMay 29, 2012

Why Settlement Counsel? A Lesson from the Scorpion and the Frog

“We do not ask our generals to be diplomats, nor our diplomats to be generals.”  William F. Coyne, Jr. used that quote to explain the concept of settlement counsel in a Negotiation Journal article over a decade ago, and I keep coming back to it.

Why does your litigator focus on what happened, rather than what you want?  Is there a reason she needs more depositions before she’s ready to talk settlement?  Why does she have a trial plan but not a settlement plan?

Why Your Litigator Does What She Does

Dallas-based settlement counsel Christopher Nolland recently told me that the story of The Scorpion and the Frog helps explain why we need special settlement counsel, and he’s right.  AesopFables.com tells the story as follows:

A scorpion and a frog meet on the bank of a stream and the scorpion asks the frog to carry him across on its back. The frog asks, “How do I know you won’t sting me?” The scorpion says, “Because if I do, I will die too.”

The frog is satisfied, and they set out, but in midstream, the scorpion stings the frog. The frog feels the onset of paralysis and starts to sink, knowing they both will drown, but has just enough time to gasp “Why?”

Replies the scorpion: “Its my nature…”

As we try to settle our cases, The Scorpion and the Frog explains a lot.  What’s in your litigator’s nature?

Is Settlement Counsel the Answer?

Yes, 90-odd percent of cases settle, and yes, most of them settle without settlement counsel, but could we get to those settlements faster?  Are there better settlements out there?  Could more of them preserve our relationships with our vendors, our employees, and our clients?

The ADR Times, the Negotiation Law Blog and The National Law Review have explored the concept of dedicated settlement counsel here and here and here, and the idea that you may need someone dedicated to, trained in, and rewarded for settlement shouldn’t come as a surprise:

The types of questions that are asked when focusing on settlement are different from the types of questions that a litigator needs to ask to prepare a complaint and commence a suit.

See James E. McGuire, Why Litigators Should Use Settlement Counsel.  The Ohio State Journal on Dispute Resolution’s “The Case for Settlement Counsel” has added support for the concept, and the Harvard Negotiation Law Review gives more reasons to consider using settlement counsel with Gary Mendelsohn’s “Lawyers as Negotiators”.  These sources and others make it clear that the idea of settlement counsel just makes sense.

More Questions about Settlement Counsel

As I work through the settlement counsel concept, more questions come to mind:

• What cases are appropriate for settlement counsel?
• When should a client engage settlement counsel?
• What does a client get with settlement counsel that she wouldn’t otherwise get?
• How can a client make settlement counsel more effective?
• How do settlement counsel get paid?

This summer I’ll explore these topics, and more.  Join the conversation — you’ll be glad you did.

“The Scorpion and the Frog” Image by Nicole L. Garber; © 2012 John DeGroote

Categories: Miscellaneous,Negotiation,Selected Posts,Settlement,Settlement Counsel

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