Settlement Counsel

Too often litigation matters are settled within one month of the trial date, after years of litigation.  A fortune is spent in legal bills and expenses, such as expert fees, videotape depositions, thousands upon thousands of documents, employee time…the list goes on and on.  And in many instances, the lawsuit settles for less than the attorney fees incurred.  So often, most of these expenses are needless.  Why?  Because no one attempted an early resolution.

 For over 15 years and for several different corporate clients, Kevin Murphy traveled the country in defense of litigation matters.  In some instances, Kevin would be lead trial counsel.  In other more parochial jurisdictions, Kevin would hire local counsel.  In all cases, Kevin would attempt an early resolution of the dispute with opposing counsel. 

 One of Kevin’s goals from the very outset of any lawsuit is to assess liability.  If his client has no liability, his job is to convince plaintiff’s counsel of that fact, or depending upon the circumstances, settle early for nuisance value.  If liability is in fact an issue, then an attempt is made for an early resolution with opposing counsel, before the legal bills started rolling in with depositions, court appearances, and motion practice.  These early resolutions save clients huge sums of money. 

 Now, the legal community has given a name to what Kevin has been doing for two decades, and that is settlement counsel.  In addition to corporate clients, plaintiff and defense attorneys have sought his advice on trying to obtain early resolutions to business disputes and tort litigation.  It makes sense for all parties.

 Every day, litigation attorneys face a dilemma.  They know that 97 percent of all civil cases either settle or get dismissed by way of summary judgment.  They also know that an early resolution is generally better than the massive expense and risk of litigation.  But attorneys also know that many corporate clients want a lawyer with a tough reputation, and raising the idea of settlement may present the wrong impression, not to mention cutting into billable hours.  Hiring settlement counsel at the outset can eliminate these conflicts of interest.

 The goal of settlement counsel is to reach a resolution either before a lawsuit has commenced, or shortly thereafter.  Settlement counsel can help by suggesting approaches and ideas that neither side contemplated.  This approach can result in certain remedies that the law cannot provide.  One such example is a lawsuit settlement Kevin crafted that resulted in a new five-year contract between the parties, resulting in a sizeable profit for his client.  Kevin’s understanding of the client’s business and goals, along with his training as a certified mediator, was key to this successful conclusion.

Frequently Asked Questions

Q:        What are some specific benefits to hiring settlement counsel?

A:        The benefits are many.  There are far more remedies and range of alternatives that can meet your business objectives in a negotiated resolution.  Litigation remedies, however, are limited to the type of relief that the legal system can award.  Most importantly, early resolution of disputes saves tens of thousands and sometimes millions of dollars in legal bills and expenses.  In addition, it also saves on hidden costs, such as employee time lost, stress and anxiety, and increased insurance premiums.  Too often, settlement occurs either shortly before trial, or on the courthouse steps, with a lose-lose resolution due to the cost of a war that should have been resolved years earlier by an experienced negotiator.

Q:        When is the best time to hire settlement counsel?

A:        Generally, there are two models in this process.  First is the initial stage, before litigation begins.  Clearly, the financial benefits here are many, including avoiding litigation altogether, with no need to pay two lawyers at the same time.  Second, if litigation commences, settlement counsel will coordinate with litigation counsel, but can proceed independently, utilizing the information obtained in discovery to enhance the possibility of settlement.

Q:        Why both settlement and litigation counsel?

A:        The most obvious answer is that good generals rarely make good diplomats.  The reason is simple—litigators are trained in an adversarial setting, and to many, any early discussion with the opposition about settlement will be perceived as a sign of weakness.  Litigators also fear that the client will lose faith in them if they raise the issue of settlement at the outset of a case.  Kevin has been trained and certified in mediation, and has negotiated thousands of agreements resolving lawsuits.  But he also has 38 years of experience as a litigator, and thus knows how to coordinate with trial counsel to obtain the information necessary to enhance settlement possibilities.  In addition, statistics show that cases settle sooner with the use of settlement counsel, thus significantly lowering litigation fees and expenses.

Q:        What will this cost?

A:        As stated, the use of settlement counsel has been proven to be a source of cost savings, especially involving business disputes.  Our firm is willing to discuss several fee alternatives, including our customary hourly rates; a hybrid fee of a lower hourly rate and a percentage of the savings; a total contingent fee on achieving a result that exceeds an agreed upon expectation; and finally, a fixed retainer with a premium based on cost savings.


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