2 PerspectivesFebruary 6, 2009

Claims for Attorneys’ Fees: How Rule 68 Can (Sometimes) Help

Most lawyers in federal court believe that Rule 68 isn’t much of a threat, and for the most part they’re right. We discussed why this is true previously, but in that same post we highlighted one noteworthy exception: Rule 68 can cut off plaintiffs’ claims for attorneys’ fees in some cases. Today we’ll discuss when that might be, and how you can make Rule 68 work for you.

Rule 68 and Attorneys’ Fees: The Law

The General Rule. As we discussed more fully in Part I of this series, the text of Federal Rule of Civil Procedure 68 imposes a penalty on a plaintiff who refuses More…

Categories: Negotiation,Rule 68,Strategy

4 PerspectivesJanuary 30, 2009

One Tire Too Many: An Unexpected Lesson in Trust

The story might be better if I could make it more dramatic, but tires aren’t all that exciting. My car had turned 5 and rolled past 45,000 miles, and there was little debate — I needed new ones. I braced myself for an expensive day, pulled into Sewell Lexus, and asked for four new tires. My unexpected lesson in trust came when my service rep suggested that wasn’t really what I needed.

One Tire Too Many

As you might imagine, I wasn’t in the mood to reconsider my need for tires, and my request hadn’t been ambiguous. But my longtime service advisor pushed, and I listened with patient annoyance. She explained that she’d be happy to sell More…

Categories: Communication,Education,Negotiation,Theory

16 PerspectivesJanuary 4, 2009

Decision Tree Analysis in Litigation: The Basics

A sample Decision Tree, available in .pdf format here.

I remember my first mediation decision tree. It was late in the day, just before impasse, and our mediator was desperate to show my client and me that we had misvalued the case.  As he sketched it for us the approach made sense, but that was no time to pick up a new technique.  His effort ended no different than most attempts to learn about decision trees on the fly — with a confused client, a frustrated mediator and a lawyer about to change the subject.

Fifteen years later I know the value of a decision tree and, just as important, how to really use one — in connection with settlement discussions and as a part of an Early Case Assessment before settlement talks begin. Admittedly they take a little effort and some practice, but whether you’re a lawyer or a mediator or their client, you’ll see one soon. Knowing what a decision tree is and how to diagram yours More…

Categories: Decision Trees,Fundamentals,Mediation,Negotiation,Settlement

3 PerspectivesDecember 19, 2008

What High-Low Agreements Can Do for You: Settlement Structures Part III

The fiscal year ends in just two weeks, and for some reason your client’s auditors keep focusing on that Acme Tool case. It’s been around all year, but somehow they won’t let go of Acme’s claim for punitive damages. You know punitives are out of the question and your opponent probably knows it, too, but accountants aren’t much for hunches. Since the case isn’t ready for settlement, Acme Tool’s claim makes its way to your auditor’s punch list for later discussion. Do you have a choice here?

You don’t have to settle the case to satisfy your accountants, your insurers and everyone else who might be alarmed by how much the other side has claimed. A high-low agreement can help you remove the potential for a runaway if you’re the defendant — and, if you are the plaintiff, you can use a high-low agreement to protect your downside and cover your costs while you focus on the heart of your case.

The High-Low Agreement Defined

In You Can Win by Settling Halfway: Settlement Structures Part I we discussed when it might pay to settle halfway — when you might resolve parts of a More…

Categories: Arbitration,Negotiation,Settlement,Structures