Michael Hackard’s thoughts and strategy on litigation and special settlement counsel were originally published by The Bella Institute in March 2012. See the original entry.
You’re at loggerheads. You’ve spent countless time and money on a matter that you once naively expected to see quick and economic resolution. You’re emotionally drained. You’ve become skeptical of lawyers and of the law in general. Is this really the way the system works? You’re a litigant – a civil litigant – and you seem caught in a whirlpool – a drain rapidly depleting your economic and emotional reserves. You need help. Do you really need another lawyer or law firm? “I’m already paying one – isn’t that enough?” Maybe – maybe not. Have you ever heard about special settlement counsel?
It would be the exceptional civil litigant who at some point in the litigation process does not weary of the expenses, strife, time and failed expectations of litigation. This observation equally applies to companies as well as to individuals. Litigation at its most elementary level is simply a claim – “I claim that you did this or failed to do that.” The response generally – also elementary is – “No I didn’t” or “I did it because you didn’t do that” or maybe “So what if I did – I had every right to.” It would be flippant to condense centuries of constitutional, common and statutory law into a few sentences – still a few words well identify common observations of civil litigation – “emotional, exasperating and expensive.” Few would use words like “good, great, or gratifying.”
I’m a lawyer – 35 years a lawyer. I’ve been a litigator as well as an occasional litigant. Being a litigator is far more pleasant than being a litigant. This is an observation worthy of note. Litigation lawyers like litigation. It is challenging, exciting and often profitable. They’re like emergency room physicians – they want to be great at their jobs – they like challenges – problems energize them – and they know that most rational human beings do not want to be their patients except in the direst of circumstances.
Litigation at times can be somewhat genteel – following some well trod procedural paths ending in an evenhanded trial before a judge and jury. It can also be chaotic – a series of claims and counter-claims – a growing rancor between the litigants’ well paid advocates – and a declining commitment to the early on stated purpose for the litigation – “It’s the principle of the thing.” Emotions can be laid raw – accusations become rampant – with calls to “our better nature” left unheeded.
Sage advice to litigants and to litigators alike is age old. There is a time for everything – “A time to tear down, and a time to build up. . . A time to tear apart and a time to sew together. . . (And) A time for war, and a time for peace.” For litigants and their attorneys the litigation process itself has often torn so much down and apart that the time for peacemaking seems long gone. It is often at the time of frustration – maybe near despair – that the role of special settlement counsel becomes timely.
The role of special settlement counsel can take a variety of forms. It can be the role of the diplomat – the wordsmith who lowers tension – who creates trust a step at a time and who is respected for his or her integrity. Like diplomats, special settlement counsel represents interests. They are not unbiased arbiters, but they work to be unbiased. They are not mediators, but they work to bridge differences rubbed raw by litigation. They are surely not judges, but it is their judgment that is valued – is sought – to end a seemingly interminable conflict.
The role of special settlement counsel by near necessity falls on those who have not been in the fight – the war – and whose willingness to engage in peacemaking is not seized upon by adversaries as a sign of weakness. Special settlement counsel can take to heart Abraham Lincoln’s oft-quoted admonition to “Discourage litigation.” This advice was given by a great litigator – one whom also advised “Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
I have been retained by parties in litigation as their special settlement counsel. I’ve also been the primary litigator tasked with negotiating with my opponent’s settlement counsel. The benefits of settlement counsel in either case are noteworthy.
As special settlement counsel the emotions of litigation’s hard fought battle are more remote. You can be accommodating – gracious – truthfully observant – yet still credible and strong. You usually haven’t been hired to negotiate the terms of surrender – you’ve been hired to negotiate peace – a peace that in Lincoln’s words might prevent the nominal winner from becoming the real loser. That said there are times when special settlement counsel is just hired to stop the bleeding
Several years ago I was hired to end what had become an enormously expensive and destructive litigation. I first saw my former client in a restaurant. It had been years since I worked for him. He looked like he was going to die. He asked whether he could come to my office and see me. He told me a story about litigation gone wild. His fortune was at stake. He had hired well respected litigators and they had fought hard – so hard that his opponents had also hired well respected litigators – some of the most expensive in the country. They too had fought hard. The litigation battle had grown in importance and expense. It grew – as it grew more and more of my client’s net worth was becoming imperiled – and his liquidity was dwindling with the burgeoning expenses of all out war. Someone was going to lose the fight that he was in – and lose it big – and it looked like it was going to be him. He hired me in a special role with special instructions – settle this case! Stop the bleeding!
General Douglas MacArthur. Photo: LIFE Magazine
I was engaged and I immediately began to work. My client’s litigators had little to benefit by settlement. They had done what they were asked to do – go to battle. The lawyers from both sides could no longer effectively talk –especially about settlement. My client wanted to settle so badly that he even wanted to call his opponent’s lawyers and plead for settlement – a call that they couldn’t ethically accept. It was clear that I had to do what I could to settle the case –and yet not convey the near desperate situation that my client faced. This was not an easy task. I determined that the first step after I gained an understanding of the litigation, its history and its likely outcome, was a personal meeting in Los Angeles with the other party’s litigator, a “Big Law” senior litigation partner. I’ll never forget opposing counsel’s opening line – “I’m General MacArthur – I’m returning – tell me why I would accept anything except a full and complete unconditional surrender.”
I knew that I was not going to accept MacArthur’s proffered “full and complete surrender.” I had neither been hired as Marshal Petain to confirm abject defeat nor Colonel Custer to execute a heroic but futile last stand. My client wanted peace but he also wanted solvency – and hope. He got all three. MacArthur wasn’t fully satisfied with the settlement outcome and neither was my client. MacArthur was probably a little more satisfied – an earlier intervention would have balanced out the pain and profit a little better. Still the bleeding stopped and my client went on with his business.
I haven’t always been counsel engaging the soon to be victorious MacArthur. I have also been in the MacArthur role. I’ve negotiated with special settlement counsel hired to bring an end to unproductive litigation. Whether negotiating as the victor or vanquished, once again some words of Abraham Lincoln have meaning – “With malice toward none, with charity for all . . . let us strive to finish the work we are in.” When litigation is ending and ending peaceably it is important to be gracious. There have been enough accusations and enough bitterness. There really is a time for peace.
When the time comes I make an effort to recognize the special role of counsel – that of peacemaker. I often tell stories of how I have been on the other side – there are times when no matter a lawyer’s skill, experience or persistence the likely success of a case is simply unarmed by the facts or by the law. It is often in the role of peacemaker that lawyers have, again in Lincoln’s words, “the superior opportunity of being a good man (or woman).”
Peacemaking in litigation can often be accomplished with the role of a mediator or of a trial judge. For those who may want to advance the process but still have an advocate on their side – rather than a non-affiliated neutral, the utilization of special settlement counsel can be of vital assistance in positively resolving seemingly intractable litigation.
© Copyright Michael A. Hackard, 2012. All rights reserved