Copyright (c) 1999 Ohio State Journal on Dispute Resolution
Ohio State Journal on Dispute Resolution
ARTICLE: The Case for Settlement Counsel William F. Coyne, Jr. *
* William F. Coyne, Jr. is an attorney and a mediator. He is a partnerin the Boston firm of Lawson & Weitzen, LLP. His e-mail address is firstname.lastname@example.org. He would like to take this opportunity to thank those who agreed to be interviewed for this Article--James McGuire, Judge John Wagner, Judge Daniel Winslow, Natasha Lisman, and David Hoffman. He would particularly like to thank David Hoffman and Jim McGuire for their helpful comments on an earlier draft of the Article.
14 Ohio St. J. on Disp. Resol. 367
A. Too Soon Old, Too Late Smart
Over my first ten years as a lawyer handling civil litigation I noticed that in many of my cases the first serious settlement discussions took place shortly before trial. This was not good. When I am getting ready for trial, the last thing I want to do is to talk settlement. I have always felt a visceral incompatibility between final trial preparation and meaningful settlement discussions. It seemed that there ought to be a way to find out sooner if the case really needed to be tried. However, I found a perplexing resistance to early settlement discussions--in opposing counsel, in my clients, and in myself.
Then I got involved in litigation in the United Kingdom and a light went on. There, traditionally, solicitors handle settlement discussions and "quarterback" the case, calling in the barrister as needed for pleadings, arguments, and trial. This gives both barristers and solicitors a single-minded efficiency in carrying out their respective duties. I saw that lawyers in the United States could achieve that same one-mindedness if a lawyer other than the trial lawyer--i.e., separate settlement counsel--were given the task of handling settlement discussions, either before litigation starts, or as it proceeds. Over the last nine or so years of my practice, I have tried, in various ways and with varying degrees of success, to separate responsibility for settlement from responsibility for trial.
This Article urges that use of settlement counsel is both wise and workable. ...
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