From John DeGroote’s Settlement Perspectives
“Settling halfway” isn’t complicated; it’s just what the name implies. In disputes where you aren’t ready — or able — to settle the entire case, look for ways to eliminate parts of it to streamline the matter, limit expenses, and refocus the parties on resolving what’s left.
After several years of defending what was then KPMG Consulting, I had one of those “aha” conversations with an outside counsel I really respect. As we brainstormed on how to eliminate some of the inefficiencies inherent to litigation, he reminded me of a difference between our perspectives: in-house litigators are free to ignore “unnecessary rabbit trails,” skip secondary witnesses, and forego tactics that have little likelihood of success, while most outside counsel feel compelled to leave no stone unturned — and they usually need written confirmation for the file when they abandon anything.
I knew immediately that this inefficiency could be exploited. Since “unnecessary rabbit trails” end up costing everyone money, all parties could save if they would streamline their cases to what’s really important to the dispute. “Faster, better, cheaper” would be more than the slogan that precedes a layoff.
The Low-Hanging Fruit. Your case is different than mine, but all parties have non-core claims, less-critical discovery requests and venturesome defenses that can be traded away. A few examples to get you started:
This isn’t the time to argue about whether any of these trades is a good deal, tempting as that may be. The point is that there are more bargaining chips at your disposal than you might have realized. If you can’t settle your case, is there a way to make it smaller?
Don’t Stop with the Easy Stuff. Think for a moment about what the other side might want or need beyond the boundaries of your dispute. Do they need to have the case resolved before the end of their fiscal year? To pay the settlement or the judgment over time? To have a confidential proceeding? Then leverage those needs for mutual gain. In addition to agreeing not to depose Mr. Smith and Ms. Jones:
Again, whatever works for your case.
Whoever it was that said “[l]et’s not go trying to boil the ocean” was on to something. If you carefully consider what motivates the other party (and their lawyers), you just might find a way to limit your dispute to what’s actually in dispute.
You’ll be glad you did.
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