A good settlement with a known outcome beats the uncertainty of going to trial almost any day.
But good settlements don’t just happen - attorneys who deliver the best settlement outcomes for their clients are well prepared. They know their case forwards and backwards and have mastered the art of negotiation.
Let’s take a look at some of the critical keys to securing a good settlement.
Know the Strengths and Weaknesses of Your Case
Knowing the strengths and weaknesses of your case (as well as the opposition’s case), allows you to accurately evaluate case worth, your chances of prevailing in court, and where you have leverage.
Uncovering a case’s strengths and weaknesses does not happen without upfront effort. Often, the cases with the best results are the ones we have time to dig into - diligently reviewing the case file, analyzing evidence, creating a detailed narrative of the case, and conducting targeted discovery. Tools such as CaseFleet’s Timelines help litigators uncover case strengths and weaknesses by improving case analysis and synthesis of case facts, issues, actors, and evidence.
Figure out your BATNA and WATNA
In the book “Getting to Yes: Negotiating Agreement Without Giving In,” Roger Fister and William Ury discuss the value of BATNA and WATNA. BATNA is your Best Alternative To A Negotiated Agreement, and WATNA is your Worst Alternative.
Often, your BATNA and WATNA pertain to outcomes at trial. For instance, your BATNA may be a 60% chance of prevailing in court where you have a maximum recovery of $500,000 and trial expenses are estimated at $35,000. Your WATNA in this example would be a 40% chance spending $35,000 and recovering nothing.
Neither, however, must to be related to trial outcomes. Your BATNA and WATNA are simply what you determine to be the most advantageous alternative course of action you can take or the worst potential outcome if negotiations fail and no agreement is reached.
Use your BATNA and WATNA as measuring sticks against any agreement proposed.
Consider Crafting a Concession Strategy
For settlements including something other than a pure monetary award, a concession strategy is recommended. This strategy involves knowing in advance what you’re willing to give up and what you simply cannot bend on.
The biggest benefit of a concession strategy is it nearly eliminates the chance of you leaving valuable assets on the table. You don’t want to drive too hard of a bargain, but you also never want to give away too much during negotiations.
Try Playing Nice
Too often, we confuse being difficult with being a zealous advocate for our client. In law, building a good rapport with opposing counsel can help get a good settlement for your client. Not only will opposing counsel be more willing to work with you (even though you are adversaries), but a little kindness may also help you learn what the other side’s needs or interests are - in other words, what their client needs to consider the settlement a success. Remember, negotiations are the one time in litigation where it is advantageous move beyond legal positions and focus on interests.
Keep Track of Negotiations
Finally, while settlement tracking tools can’t negotiate for you, they can save you time and keep things organized. Settlement trackers are great for keeping track of offers and demands and creating a chronological history of your negotiations for each case.
Parties agree to a settlement when they believe their negotiated outcome is superior to the alternative, with all of its costs and uncertainties. The tips described above can help you ensure you get the best settlement outcomes for your clients.