I recently showed up at an Issue Conference in Superior Court. Although these conferences are (supposedly) for the purpose of narrowing issues and making sure the case is ready for trial, everybody knows that the court typically treats these issue conferences as settlement conferences.
My clients were present at the conference and I was loaded for bear. We had a great case; the facts all lined up and we had great legal arguments. The Judge met with us briefly and then the negotiations began between counsel.
We spoke. We sparred. We arm-wrestled. We argued. We persuaded. The judge helped us at key points. And then we settled.
The second phase began. How do you settle a case in open court in front of the judge? On the record. Opposing counsel proposed we put the settlement on the record. But there was a problem. Opposing counsel’s clients weren’t in court.
They hadn’t shown up that day for the issue conference (even though they were supposed to). So how do you do that? How do you put a settlement on the record when one of the principals isn’t present?
The judge raised the possibility of having the principal appear by phone for voir dire and putting the settlement on the record. Is such an arrangement binding? Maybe. Nobody had time to run out and research it. Everything was happening in real time. If nobody challenged the settlement, fine. But after the fact if the opposing side claimed they were misled, or misunderstood, or claimed that voir dire by phone isn’t sufficient, what happens then? Were we truly prepared to cut some new case law on this point at the appellate level?
Fortunately I had brought with me a fully typed up settlement agreement I had prepared in advance. I even had the soft copy on my computer (in the car). Opposing counsel proposed we sign a “short form” of settlement agreement with the final form to be prepared, circulated and signed later. But there was no need to go there. I pulled out my fully prepared settlement agreement, handed it to opposing counsel and invited him to give me his comments (which he did). He then sent it to his clients, who signed it, sent it back, and we were done.
What’s the benefit of this? There’s no possibility for misunderstanding. No haranguing after the fact about phantom settlement terms supposedly discussed but not included in the agreement. No after-hours discussions with friends, families or others who might second guess the settlement terms and then cause the principals to back away. No, we were done.
Thirty years ago I settled a large construction defect case with a lot of players. We signed a skeleton form of settlement agreement at mediation with the complete settlement agreement to be prepared and signed later. But even though we had signed a “short” or “abbreviated” form of settlement agreement, it took nearly a full year to get the final form prepared, accepted and signed. After going through this process I said to myself that I would never do that again (and I haven’t). When I’m serving as attorney I always bring with me a fully prepared final settlement agreement – and we hammer out the final terms at the mediation or settlement conference so we don’t have to go back to the judge, the mediator, or the arbitrator for confirmation, clarification, persuasion or muscle. When I’m a mediator I typically invite one or both parties to bring with them to mediation a fully prepared form of settlement agreement – and they usually do. So when we’re done with mediation, we are truly, fully, actually done – without remorse, second thoughts, second guessing or backtracking. As a result, we never spend time on the back end trying to get the settlement buttoned up. It’s all done in advance. It works like a charm.
Why do this extra work on the front end to put together a final agreement before the case has been settled?
Because it’s not over ‘til it’s over – and nobody likes to keep negotiating terms, wrangle opposing counsel or deflect claims or arguments after a settlement is reached.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].