6 PerspectivesSeptember 30, 2008

Rule 68 and Offers of Judgment, Part III: 9 Situations Where They Just Might Work

Following my posts about how Rule 68 works in Part I of this series and why it works in Part II, I had spirited discussions with a few of you about when offers of judgment can be most effectively used.  This post will highlight 9 situations where Rule 68 offers are more likely than most to be successful.  As always, this is a nonexhaustive list based on my own experience; I welcome additional situations you’ve witnessed.

Nine cases and situations where I believe Rule 68 offers are the most likely to be successful include:

(i) Hindsight Avoiders. I have litigated against several trustees, and they know their judgment will someday be second-guessed — with 20/20 hindsight — if they lose at trial.  Trustees and other fiduciary representatives are a bit different than individual plaintiffs who can “bet it all” on a bad case; like it or not, trustees may someday have to answer the question:  “The Rule 68 offer was unconditional; how could you have left it on the table?”  Or:  “How could you not have understood how bad our case was when you had an offer of judgment in front of you?”  Go ahead and use Rule 68 to make it hard for them to walk away.

(ii) The Bird in the Hand. Cases with natural breaks in damages are ripe for Rule 68 offers.  Cases with contractual damage caps and cases where a back More…

Categories: Mediation,Rule 68,Settlement,Strategy,Tactics

2 PerspectivesSeptember 16, 2008

Why We Can’t Just “Cut to the Chase”: Acceptance Time in Negotiation

Not so long ago I was in Cleveland mediating a fairly complex commercial dispute.  My client had a plane to catch at the end of the day but, as is often the case, he really wanted a good deal.  Based on each side’s positions and the “dance” to that point, we both knew where the case would probably settle.  At about 3:00 in the afternoon he looked at his watch and asked a question most of us have heard before:  “Why don’t we just cut to the chase, offer what it’s going to take to settle this thing, and get out of here?”

“Cut to the Chase” Is Not a Negotiation Term

I recently learned that Hollywood, rather than frustrated negotiators, brought us the phrase “cut to the chase.”  Like today, good movies from the early days of talking pictures frequently ended with a chase scene.  “Obligatory romantic storylines” that weren’t exactly the best part of the movie often preceded the chase, according to The Phrase Finder.  Unfortunately, getting from the obligatory romance to the end wasn’t always smooth — Wikipedia tells us that, at some point, “an inexpert screenwriter or director, unsure how to get to the climax, would just make an abrupt transition, known as a cut.”

The Chase Scene Doesn’t Work Without the Rest of the Movie

While experienced negotiators may realize it a bit sooner than everyone else, at some point we all begin to see where our deal is headed. More…

Categories: Fundamentals,Mediation,Negotiation,Settlement