My colleague Ryan Flax published an article earlier this week about six key triggering events that warrant at least a call to your litigation consultant of choice. One of those triggers was settlement, and that got me thinking. In the hundreds of litigation-focused articles we've published here over the last several years, we haven't talked about settlement very much. Looking back, that seems silly since nearly all cases settle.
Over the past decades as a litigation consultant, I've had the opportunity to participate in a variety of settlements. Most frequently, we are engaged to assist in the preparation of litigation graphics for a mediation that is essentially a structured settlement process.
If you think of settlement as mediation, then how would you prepare? In mediation, I think most lawyers would prepare an aggressive presentation that helps persuade your fact finder. I think you should do the same for settlement talks.
In federal court, a magistrate judge will often try to force a settlement during pretrial conferences. Usually this involves the judge putting the parties in separate rooms, running back-and-forth between rooms, and telling each party that they're going to lose horribly. It's an effective tactic.
At this point, the judge is usually working from a short summary of the facts of the case and is by no means an expert in the facts. The judge is attempting to take a very quick look at the facts, and attempting to force both sides’ hands using fear as a motivator.
What if instead you were able to open up a laptop (or the same in paper form) and say, “Your Honor, if you'll allow me a three minutes, I'll show you six things that may change the way you are looking at this case.” I think most judges would say yes.
The same is true in direct settlement negotiations. Again, if you have a brief and powerful presentation available to you, you might be able to create enough worry in the other side’s mind to move them somewhat off their position. It is well known that fear of loss is a 10x greater motivator than hope of gain, so use it to your advantage.
So here are five areas where you can use litigation graphics meaningfully, powerfully, and successfully during settlement talks.
1. During actual mediation. Here there are usually no federal rules of evidence. It's a good time to be aggressive with your litigation graphics.
2. During settlement talks in a judge’s chambers. Whether you open a laptop to a PowerPoint or whether you have tabletop-size charts to share, using visuals will show that you're serious, will allow a judge to get her arms around your case quickly, and will provide ammunition to force settlement from the other side closer to your number.
3. During direct settlement talks. Using graphics during settlement talks will help put some fear into the opposition and may induce opposing counsel to change their long-held beliefs about the case.
4. During an email exchange settlement. Some settlements happen entirely over email. Sharing a handful of graphics in an email is simple and shows you're prepared and ready for trial. It does not take many graphics to get your point across.
5. During mock settlement discussions. Not all settlement discussions are created equal. In some cases the dollars at stake are such a big deal that mock settlement discussions or mock mediations are conducted. This is an excellent time to test your litigation graphics to see how they fly with your mock opponents or mock mediators.
Don't overlook litigation graphics in your settlement talks. They are an essential weapon in the arsenal of the well-prepared trial lawyer.
Other A2L articles related to litigation graphics use in arbitration/mediation or at trial generally:
- 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
- Litigation Graphics, Psychology and Color Meaning
- 6 Studies That Support Litigation Graphics in Courtroom Presentations
- Making Good Use of Trial Director & Demonstratives in an Arbitration
- Using prejudicial graphics where Rule 403 does not apply
- FREE Download: How to best use timelines at trial