Wisconsin
Lawyer
Vol. 80, No. 9, September
2007
How Can I Coax a
Client Away from an Unreasonable
Settlement Position?
When your client takes a clearly unreasonable settlement position
(for example, as a term of
settlement, demands a written apology or a payment that exceeds maximum
legal damages) and does not
accept logical explanations as to why the position will not work, what
do you do to get the client to see the light?
Respond to our next question:
Should I represent multiple
family members in a common transaction? I worry about
handling transactions between a client's
family members. On the one hand each should have his/her own
attorney, but on the other hand in most such transactions separate
representation will simply cost the
family more. This is especially troubling when I have represented
members of a family for many years. How can I serve the family as a
unit, and still protect myself
and remain ethical?
How to respond: Email your brief response (200
words or less) by Oct. 1 to wislawyer@wisbar.org, subject
line: Multiple Family. Include
your name, affiliation, and city. The editors will select several
responses for publication and will notify you in advance of publication
if your response has been selected.
Help Clients to See Their "Truths" and the Need to Move
Forward
If logic and reason
fail to move your client toward settlement, say nothing. Say that you
need a moment to gather your
thoughts, and then let time pass before responding to your client.
When you break the silence, ask open, honest questions. Help the
client arrive at his or her "truth." Not legal truth. The
truth of your client's life. The truth that your client knows he or she
cannot
explain divorce, addiction, or failure. A moment of silence may be
necessary to mourn the passing of a marriage, freedom, or ego.
Forward is the motto of our great state and should be the motto for
your client when faced with the impossible. If your client
is unreasonable, change the dynamic. Tell your client to make the
choice to move forward with his life. Help him understand that
you cannot guarantee the outcome of trial or the ramifications of
settlement. You can guarantee that the right choice is to move
forward now. Move forward in his business. Move forward in his
personal life. Choose to take his life off litigation "hold."
Remind your
client that in life, each time a door closes another opens. That new
door beyond which lies life's possibilities cannot open until this
door closes.
- Dan O'Brien, Attorney at Law, Madison
Determine How Badly You Want to Keep the Client and Act
Accordingly
How you
handle this situation depends in part on how badly you want to keep the
client. Under SCR 20:1.16(b)(3), you
may ethically withdraw from representing a client if the client
insists on pursing an objective that the lawyer considers repugnant
or imprudent.
If you hope to retain the client, you should draft the classic CYA
letter. Explain the current facts, the likely outcomes, and
the client's position on settlement. Then explain why you don't
believe it would be a prudent course of action. Make it clear that it
is the client's decision on how to proceed, but that you want the
client to understand that the offer likely will be rejected. Tell
the client what you expect the consequence to be, which likely will
include increased fees for the client. (Amazing how effective
that simple statement can be!)
Ultimately, you may just have to remind yourself that both you and
the client will have to live with these decisions. The
client's decision to propose an unreasonable condition to settlement
may prevent a timely and beneficial resolution to the dispute. On
the other hand, your decision to continue representing the client and
advocating for an unreasonable settlement condition may hurt
you and your future clients when working with the same opposing
counsel.
- Teresa K. Kobelt, Haley Palmersheim S.C., Middleton
Keep the Dialog Going…
Add to the discussion of the question: When your client takes a
clearly unreasonable settlement position (for example, as a term of
settlement demands a
written apology or a payment that exceeds maximum legal damages),
and does not accept logical explanations as to why the position will not
work, what do you do to
get the client to see the light? Email your response for
possible inclusion in a future issue to wislawyer@wisbar.org, subject
line: Settlement. Limit your response to 200 words or less. Responses
may be edited for length, style, and clarity.
To suggest a question: The WL welcomes
suggestions for questions to pose to readers. Email your suggestions to
wislawyer@wisbar.org, subject
line: Proposed WL Question.
Honestly Evaluate the Case at the Beginning and Be Prepared to
Negotiate With Your Client
The best
precaution against your client taking an unreasonable settlement
position is for you to be a good counselor and
honestly evaluate the case at the beginning. You can't expect your
client to accept a modest settlement if you promised a huge victory
when you were trying to land the business. Of course, this isn't so
easy, because your client needs to feel like you believe in the cause
and that you have confidence that the case is worth pursuing. It's
hard to be both an honest counselor and a powerful champion. I try
to reconcile these roles by making clear to the client that a good
lawyer anticipates the strongest parts of the opposing case.
Being "pessimistic" by looking for the worst case scenario
gives you an honest appraisal of the case, and it maximizes your chances
for success through litigation. You just have to sell your client on
the benefits of your pessimistic outlook.
If, despite your advice, your client is not giving up what you think
is an unreasonable settlement position, it means that
your client does not have full confidence in your advice. You've got
to negotiate with your client just like you would negotiate with
the other side. Get another evaluation of the settlement position.
Perhaps you can get an objective evaluation, such as a set of
verdicts from comparable cases. Perhaps you can get a neutral
evaluation, such as an appraisal of property or from a mediator. But,
be prepared to change your position, too. Unreasonable demands are
made and met in cases all the time.
- James D. Peterson, Godfrey & Kahn S.C., Madison
Wisconsin
Lawyer
