Add Your PerspectiveOctober 3, 2008

One Reason to Manage the Other Side’s Expectations

There’s an old saying that “victory has a hundred fathers, but defeat is an orphan.”  It might have taken me a long time to learn why, but there is a good reason you should put that lesson to use at the beginning of many cases.

Would you rather be associated with a good case or a bad case?  If you had a choice, you’d pick the good case, right?  Everyone loves a winner, and at law firms it’s no different.  Associates, staff and even partners can smell a winning case, and a firm’s best lawyers often manage to work their way onto the team when they hear about a hot new matter.  It’s human nature, and it shouldn’t surprise anyone – just like it shouldn’t surprise us when good lawyers are able to migrate away from bad cases.

I wrote recently about how important it is to manage client expectations skillfully and realistically in Managing Expectations:  An Unexpected Lesson on the Bus to Hertz, but when it comes to their opponents, most people would rather surprise the other side than manage their expectations.  This post explores why you might not want to listen to most people. More…

Categories: Fundamentals,Miscellaneous,Tactics

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

3 PerspectivesSeptember 23, 2008

Rule 68 and Offers of Judgment, Part I: How They Work and Why You Should Care

I once had a client tell me:  “I’m in the outsourcing business, not the litigation business.”  He would probably read the title to this post and say something like:  “I’m a client.  Why do I care about rule anything?”  Whether you are a client or a lawyer involved in US litigation, Rule 68 and similar state rules are important to you for two reasons:  they can get cases resolved when nothing else can, and few lawyers use them effectively.

Rule 68:  Formalizing the Settlement Offer Process

While the text of Federal Rule of Civil Procedure 68 is a bit dry, it’s not that difficult in practice.  In short, Rule 68 imposes a penalty on a plaintiff who refuses a reasonable settlement offer.  To avail himself of Rule 68′s benefits, a defendant has to offer the other side a judgment in writing – a settlement offer that, if accepted More…

Categories: Rule 68,Settlement,Tactics

1 PerspectiveSeptember 19, 2008

One Use for an Unnecessary Confidentiality Clause

We all know that confidentiality clauses keep information private, but is there a reason to insist on one if you don’t care who discovers the information you are trying to protect?  Would there ever be a reason to protect the price you paid for your house with a confidentiality clause?  Sure there is – just ask my real estate agent. More…

Categories: Negotiation,Tactics