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Thinking through the negotiation process: checklists and step-saving form pleadings can keep a case moving forward, but a winning settlement package requires careful thought.

Article Excerpt
In seminar after seminar, trial lawyers are taught how to take depositions, try cases, and negotiate settlements. We are given rules--sometimes conflicting ones--to follow: Always file written discovery with the complaint. Never file written discovery with the complaint. Always make a settlement demand. Mediate every case.

We dutifully take notes, making checklists based oil the suggestions of seminar presenters and other colleagues. As we grow in our practices, we create our own checklists and rules and develop time-saving form pleadings and discovery.

We no doubt become better attorneys by following the tried-and-true practices of others and creating stop-saving systems. However, lists, rules, and form pleadings also can work to our and our clients' disadvantage. They tempt us to delegate too many tasks and can discourage us from thinking carefully about what best serves our clients' interests.

In each step of litigation, we must think before we act. Negotiating a settlement in an auto crash case is no exception. Every decision you make during the settlement process should be deliberate, and the following suggestions should be considered with that in mind. No rule or tip should ever replace your independent analysis of a client's case.

To send or not to send

In most collision cases, sending a settlement package and a demand for a sum certain before filing suit is a given. After all, a reasonable settlement almost always serves your client's best interests, and sending a settlement package and a demand allows negotiations to begin.

However, the decision to do this must be made with care. Ask yourself: In this particular case, will sending either a settlement package or a demand, or both, advance my client's interests? The answer is usually, but not always, yes.

Imagine you represent an honest, hardworking, 48-year-old man named Joe who suffered neck and back injuries in a low-speed, rear-end collision. Diagnostic tests show that Joe suffered from moderate-to-severe degenerative disk disease long before the crash. The impact caused no obvious disk herniations or other anatomical changes. However, it did cause Joe severe pain, requiring cervical and lumbar laminectomies. Neither car was damaged.

Based on earlier experience with the insurance company and adjuster involved in the case, you know there is little chance that the company will extend a reasonable settlement offer. In the past, you have prepared settlement packages that summarized liability and damages and included photographs and other potential exhibits, only to discover that no meaningful offer would be made. You also know that the law firm representing this insurer is generally lair and reasonable.

Your checklist tells you to...

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