5 PerspectivesSeptember 28, 2008

Come on In, the Water’s Fine

A quick warning:  this post is not about how to resolve disputes; it’s about blogging and it’s one of the few off-topic posts I intend to write.  For thoughts on settlements and how to negotiate them, please scroll down to the next post. 

With that important caveat out of the way, today makes 30 days since Settlement Perspectives went live.  It’s hardly time for a memoir, but I have fielded more than a few questions from lawyers considering whether to launch a blog, and this is my way to encourage them — with a few pointers added in.

The First 30 Days

Settlement Perspectives has been a lot more fun than I had imagined.  As some of you know, the site went live with its first post, “Why Are We Here?”, on August 29th, and hitting “publish” that afternoon was no small feat.  I put my ideas out there and — legal paranoia notwithstanding — nothing bad has happened.  I soon turned to a better question than “Why Are We Here?”:  What’s next? More…

Categories: Blogging,Miscellaneous

3 PerspectivesSeptember 26, 2008

Rule 68 and Offers of Judgment Part II: Why They Work and How to Use Them

While I wrote previously about how Rule 68 works in Rule 68 and Offers of Judgment Part I:  How They Work and Why You Should Care, most people haven’t considered why it works.  This post outlines some of the reasons why offers of judgment, under Rule 68 or otherwise, can be so effective in getting cases settled.

As outlined in Part I, Rule 68 imposes a penalty on a plaintiff who refuses a reasonable settlement offer and doesn’t beat that offer at trial.  At risk are court costs which, admittedly, don’t create a significant financial exposure.  Big numbers or not, the Rule can still be effective if used under the right circumstances.

Why Does Rule 68 Work?

Rule 68 works because lawyers have to communicate settlement offers to their clients, and a Rule 68 offer of judgment is a settlement offer that creates a downside risk for the plaintiff. More…

Categories: Rule 68,Settlement,Strategy,Theory

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