5 PerspectivesAugust 16, 2009

CPR Publishes Early Case Assessment Guidelines

You can’t settle your case before you know what it’s worth — or at least you shouldn’t — so we discussed why it’s best to value your dispute before settlement discussions start a few months ago.  This fact has driven an entire series on Early Case Assessments here on Settlement Perspectives, and it’s clear I’m not the only in-house ECA fan out there.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment “ECA” Guidelines (2009), which are designed to “set forth a process designed to help More…

Categories: ECA,Tactics

Add Your PerspectiveJuly 25, 2009

The Partner Focus Group: An Easy Way to Get The Extra Perspective You Need

There’s something exciting about a war room as the big case turns toward trial, and ours was no different — witness notebooks, research files, box after box of “hot” documents, and a whiteboard with the latest graphic to explain it all.  After days in that war room we began to wonder:  Why won’t the other side settle?  How could they not understand how bad their case was?

A Fresh Perspective from Down the Hall

One of the firm’s senior lawyers wandered by the conference room and asked a few questions to break up the evening.  He listened to our quick pitch on the case, and sat down to probe a bit more.  Our stories were followed by one of his own — an old case whose plaintiff sounded more like our plaintiff than not.  The more we talked the better we understood where our opponent More…

Categories: ECA,Settlement

2 PerspectivesJuly 18, 2009

Ambiguities in Rule 68: Why Are They Relevant to You?

If you see an ambiguity in a rule, is it your job to fix it? Maybe it is, maybe it isn’t, but one thing’s for sure: until the rule changes, you have to deal with it as it is. Like it or not, uncertainty creates risk as well as opportunities — for you and for the other side. Whether you react to either is up to you.

This isn’t the Rule 68 Blog (despite our introduction to Rule 68 and an entire series on the rule already), but a recent article in the Minnesota Law Review merits a return to one of our favorite topics. Danielle M. Shelton’s recent article, “Rewriting Rule 68: Realizing the Benefits of the Federal Settlement Rule by Injecting Certainty into Offers of Judgment,” suggests how we can fix Rule 68 like our Civil Procedure professor might have wanted — but along the way it thoroughly explores uncertainties created by Rule 68 that litigators ignore at their peril.

Can Rule 68′s Ambiguities Drive Settlements?

Professor Shelton makes a few critical points about the uncertainties created by Rule 68 — and why lawyers for both sides should care: More…

Categories: Rule 68,Settlement,Tactics

4 PerspectivesJuly 9, 2009

Advanced Decision Tree Analysis in Litigation: An Interview With Marc Victor, Part II

For advanced decision analysis in litigation, where do we start?  Last week we began to take our series on decision trees to the next level with Part I of our interview with Marc Victor of Litigation Risk Analysis, Inc., who pioneered the use of decision trees in dispute resolution and litigation in the 1970s.  This post is Part II of that two-part interview, in Q & A format.

Marc, people often say that the “inputs” on a decision tree — the probabilities of various outcomes — are imprecise.  One of the the comments to our first post on decision trees put it this way:

The theoretical problem is with the assignment of probabilities and their meaning. Unless you are just goofing around with numbers, the assignment of a probability to an event presupposes that there is a frequency of similar events to count. This is hardly ever true in litigation, unless restricted to something like employment dismissal cases. Even then, I have trouble interpreting the numbers as anything more than subjective probabilities, i.e. just goofing around with numbers.

Is this a fair criticism?

I don’t think so.  First, it’s not a question of probabilities being “precise” or More…

Categories: Decision Trees,Negotiation