A settlement advocate is an attorney for the client who considers how the client can achieve its objectives without the time, expense and delay associated with a trial.
A mediator is a neutral. Settlement advocates represent the client’s interests, advocate their case, and strive to meet the client’s objectives in a manner that is acceptable to the other parties.
Trial counsel focuses on winning the case. Settlement advocates listen to all parties and seek an expeditious resolution consistent with client objectives and expectations.
Trial counsel can focus on discovery and trial preparation. Settlement advocates are able to discuss, explore and evaluate the case and objectives outside the context of litigation.
Even in the context of settlement discussions and objective case evaluations, trial counsel tend to be guarded, and opposing counsel and clients are similarly guarded in their discussions. Settlement advocates can be more candid in their assessment of parties’ positions and may be able to discuss the case with trial counsel and litigants in a manner that is difficult in the context of contested litigation.
Both sides believe that trial counsel is obligated to utilize any information they gain to advance the client’s litigation objectives. With client consent, settlement advocates can have discussions and consider matters that they agree not to share with the client or trial counsel.
While clients expect trial counsel to “believe in their case,” settlement advocates can ask the client to consider the possibility of less than a complete victory, or loss, at trial.
Almost every case eventually involves a discussion of settlement. Most are likely to include a court-ordered or party-initiated settlement conference or mediation. In each scenario, the client needs representation. Whether it is trial counsel or a settlement advocate, there will be an associated cost. A settlement advocate can increase the likelihood of an early resolution acceptable to the client saving significant expense.
Ideally, the client, trial counsel and settlement advocate work together from the inception of the conflict; however, it is rarely too late. Schian Walker began as, and largely remains, a boutique bankruptcy firm to resolve complex problems in which at least one party is financially distressed. We have achieved significant successes for clients, even post-verdict and post-judgment.
Matters come to Schian Walker in a variety of ways. Perhaps it is the expense of litigation or the strain it places on the client or the business. Other times, it may be as a result of an adverse ruling. In four memorable instances, the initial telephone call went like this: Trial Counsel: “Hello, this is __________. We represent _________. We had a trial last week and the jury came back with a verdict against us. It returned a verdict of [$2 million, $14 million, $400 million, or $5 million]. Our client needs to talk to a bankruptcy lawyer.”
Schian Walker attempted to settle the first $2 million verdict, but to no avail. The client ultimately won on appeal, but at significant cost.
We resolved the $14 million verdict through settlement discussions, but without a bankruptcy, without an appeal, and on terms acceptable to all parties.
We resolved the $400 million verdict but did so in the context of a Chapter 11. Schian Walker resolved the most recent $5 million verdict through mediation, but without the need for a bankruptcy or appeal.