USA – MISSOURI Trends and Developments Contributed by: Craig S. O’Dear, CSO Law LLC
Winning Without Fighting: A Modern Approach to Resolving Legal Disputes Dispute resolution clients need (i) a timely resolution of the dispute, (ii) pursuant to a process they feel is fair and just, and (iii) at a price reasonably related to the value of the dispute. How well do we meet these needs and desires of our clients? Too often, the answer is not well enough. How is the Missouri system of dispute resolution fall- ing short? Too many disputes are taking too long to resolve. Courts often move slowly. Cases keep mov- ing only when pending motions are ruled in a timely manner. For a variety of reasons, motions often sit unresolved for lengthy periods. Unfortunately, lawyers have limited, if any, control over such issues. Time is money, as they say, and that is true in liti- gation. The longer the case remains unresolved, the more it costs the parties. As time passes and costs rise, clients wonder if they would have been better off to simply walk away or settle for whatever they could have had. How much justice can you afford should not be a question that frequently comes to mind for a party seeking justice. Too often, the experience leaves clients believing this is the first question they will ask themselves the next time a dispute arises. To remain vibrant and relevant, our profession must become more effective and efficient in meeting the needs of our dispute resolution clients. How? Adopt a dispute resolution mindset Start at the beginning of the case. Communicate with opposing counsel. Try to understand your opponent’s position. What are their wants/needs? Communicate your client’s position, where they might have flexibility, and where they probably will not. Communicate an open-door policy on settlement discussions. Let it be known you are always open to suggestions, ideas, and proposals to resolve a dispute. Pay particular attention to wants vs needs. This often becomes the ball game. Parties rarely settle for what they want; parties settle for what they cannot say “no” to. Your job as a trial lawyer is to find out what that number is and to let your client decide whether they
want that deal, or whether they want to seek a better result at trial. Then, your job is to win at trial. Litigation is a form of negotiation. As litigation pro- gresses, the parties’ evaluation of their positions may change. Discovery reveals new strengths and weak- nesses in a case. Rulings on motions impact evalua- tions. Be open to opportunities for resolution. A great trial lawyer will also be a good negotiator. If you can substantially achieve your client’s objectives without the risk and expense of trial, you have dem- onstrated what Sun Tzu calls the “acme of skill”. You have subdued the enemy without fighting (going to trial). Adopt a risk management mindset When defending high-exposure cases, the process of litigation, trying lawsuits, and negotiating settlements is a risk management function. Clients want and need advice on strategies, objectives and potential out- comes. Often, in-house counsel has little experience with high-exposure, high-value cases. They must make decisions about those cases, and they need a framework and rationale for those decisions. You must be comfortable providing one. Every case presents a potential range of exposure. And there is a probability associated with the various outcomes. Often – not always – those outcomes and probabilities are represented by a bell curve. There are outlier outcomes on the low end and the high end, with the more likely outcomes somewhere in between. Using a risk management approach to the analysis, the outcomes judged to be most likely multiplied by the probability of the outcome yields a reasonable value of the case. This often provides a reasonable settlement amount that can provide one data point in evaluating settlement offers and establishing a rea- sonable goal in a negotiation. The process is an art more than a science, but it pro- vides a structure for thinking about the value of a case and evaluating the reasonableness of a settlement. Any number of facts will influence the final determina- tion, often pointing to a settlement amount higher or lower than that suggested by a purely mathematical
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