Law Commons^™

...Because It’S Not Just About Money, Elayne E. Greenberg

Faculty Publications

(Excerpt)

When lawyers represent their clients in party-decided dispute resolution processes such as negotiation or mediation, lawyers have a unique opportunity to work with their clients to help shape a comprehensive settlement beyond just a monetary settlement. This is an opportunity to address the client’s human and core concerns and to help their client secure their personalized sense of justice. However, lawyers and mediators who myopically seek to resolve every legal conflict by just monetary resolution are akin to the carpenter who sees everything as a nail because the only tool available is a hammer. This column invites you to …

Family Lawyering With Planned Early Negotiation, John M. Lande

Faculty Publications

Whether you know it or not, you may already be using planned early negotiation (PEN). As the term suggests, this process involves planning to negotiate your cases at the earliest appropriate time. Normally you can be ready to negotiate long before you are ready for trial.

This article summarizes PEN procedures based on interviews with excellent lawyers about how they handle their cases. For example, one lawyer said that he “prepares for settlement from day one of the lawsuit” and that he engages in a “constant process of evaluating the claim” throughout the litigation. Planning to negotiate from the outset …

Good Pretrial Lawyering: Planning To Get To Yes Sooner, Cheaper, And Better, John M. Lande

Faculty Publications

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, …

When The Price Of Settlement Is Ethically Prohibitive: Non-Disparagement Clauses That Apply To Lawyers, Elayne E. Greenberg

Faculty Publications

(Excerpt)

At last! You have lived with this case for many years, and you are now on the verge of finalizing the terms of a settlement agreement. All the contentious issues have finally been resolved, so you thought, when the defendant leans over the table and says, “Just one more thing. We want you and your client to sign a non-disparagement clause as part of the settlement.” Yes, non-disparagement clauses have been frequently used as a controversial reputational shield in high-conflict divorces, sensitive employee terminations and contentious consumer actions. However, barely discussed is whether lawyers are ethically able to suggest …

Show Me The Money: Part One, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Until now, the discussion of how to ethically monetize “the value added” that settlement savvy attorneys bring to the client has been one of the few remaining taboos that is rarely, candidly discussed among lawyers. How should settlement-proficient lawyers calculate the value of efficient, quality outcomes? How does a lawyer who bills by the hour ethically deal with the inherent conflict of interest between his desire to make as much money as he can and the economic disincentive to be settlement proficient? What are some creative billing incentives to more closely align the clients’ desire for contained legal costs …

Learning From Cooperative Negotiators In Wisconsin, John M. Lande

Faculty Publications

To negotiate constructively from the outset of a matter, some lawyers use a "Cooperative" process, giving parties an additional process option, especially if parties believe that mediation or Collaborative practice is not suitable. Cooperative practice offers parties the opportunity to have lawyers represent them in an interest-based process governed by a negotiation agreement-while retaining ready access to litigation if needed, without losing their lawyers as in Collaborative practice. Cooperative practice can increase interest-based negotiation in direct negotiation between lawyers, increase efficiency and satisfaction with negotiation, and influence the general legal culture to incorporate problem-solving in everyday practice more often.

What We Know About Malpractice Settlements, Philip G. Peters Jr.

Faculty Publications

The enclosed article is the first comprehensive synthesis of two decades of empirical research on medical malpractice settlement. The portrait that emerges from this synthesis is both more reassuring and more complex than popular portrayals. Although the fit is not perfect, the merits generally drive the settlement process. Weak claims consistently fare the worst, toss-ups cases do better, and strong cases have the most success.Prior scholarship on malpractice outcomes has understated the strength of this correlation because it has focused principally on the impact of negligence on the settlement rates and has largely ignored the importance of settlement amount. The …

How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande

Faculty Publications

This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.This article provides background …