An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I’d like to highlight two. Since the article’s vantage point is what defense lawyers can learn from plaintiff’s lawyers, it is equally good reading for both sides.
1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.
Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren’t really ready, you panic and may be forced to take the inadequate offer.
2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.
Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about — and yours is one of hundreds she is handling — she will want the nutshell version. If you don’t know it, you don’t truly know your case. It should look something like this:
“Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy.” If judges want and need more details, they will ask. More importantly, the issues have been isolated.
The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.