If you’re in the middle of a lawsuit, or if you’re about to be in a lawsuit, you may be wondering what your role will be, and what role your attorney will play, in negotiating a settlement.
There’s no right or wrong way to answer this question because different lawyers have very different philosophies on how to negotiate a settlement, along with different opinions regarding what the lawyer and the client should do. Also, every court case is different, so every settlement will be different. In this post, I’ll discuss certain general principles about settlement, and how I ordinarily handle settlements.
A lawyer generally can’t contact a party represented by another lawyer
Rule 4.2 of the Oklahoma Rules of Professional Conduct says,
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
This means that your lawyer can’t communicate directly with the opposing party if the opposing party also has a lawyer. Also, if you have a lawyer, the opposing lawyer can’t contact you. If the opposing lawyer contacts you and you are represented, you may file a bar complaint.
If you’re not represented by an attorney, the other side’s lawyer may contact you. If the other party is not represented, your lawyer may contact them.
Rule 4.2 only applies if a lawyer knows that the other party has a lawyer. If the opposing lawyer contacts you and he doesn’t know you have a lawyer, you should tell him that you have a lawyer. The lawyer must then cease communicating with you.
Rule 4.2 also says that a lawyer representing a client may communicate with a represented party if the communication is authorized by law or court order, or if the lawyer has the opposing lawyer’s consent. I have, in the past, consented to opposing lawyers communicating with my client when I knew that the opposing lawyer would not overreach.
If you are represented, you may still communicate with a represented party.
Your lawyer may not communicate with a represented party, but you generally still can. In divorce and child custody cases, courts generally prefer that parents work things out among themselves, rather than involve lawyers and the court system. If you believe that you can work out matters directly with the other party, you may want to talk to them yourself, rather than calling your lawyer.
What I do when I negotiate
Negotiations vary, but this is the way I usually handle it: I will ask my client if he has an offer he wants to make. If my client is willing to make an offer, I will call the opposing lawyer (or the opposing party, if the opposing party doesn’t have a lawyer). I will relay my client’s offer to the opposing lawyer or party. If the opposing lawyer or party accepts the offer, the case has been settled and it’s over. If the opposing party or lawyer makes a counteroffer, I will relay the counteroffer back to my client. Often, the opposing lawyer will call me first and will make the first offer. When this happens, I promptly relay the offer to my client. Much of my casework consists of relaying messages back and forth from my client to the other lawyer or party.
My clients’ role when I negotiate
My client is always free to make his own choice as to whether to make an offer or accept the other party’s offer. I can’t force my client to do anything. However, I will very often advise my client as to what offer to make, or whether or not to accept the opposing party’s offer. Sometimes I will not tell my client what I think and leave the choice to the client. If my client is taking a course of action that I believe is unwise, I will often tell the client so. I sometimes encourage my client to accept an offer if the offer is good, or I will encourage my client to reject an offer if the offer is bad.
How much advice do I give a client? This depends generally on the complexity of the case, and on my client’s sophistication or lack thereof. If the case is complicated, and/or if my client is relatively unsophisticated, I’ll be giving my client a lot more advice than I would if the case is simple, or if the client is more sophisticated.
I always strive to make sure my client knows what is going on. Rule 1.4 of the Oklahoma Rules of Professional Conduct says,
“(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
If your lawyer is not keeping you informed about your case, it may be time for you to obtain another lawyer.
That being said, I can’t always give every client the attention the client wants. While I try to return calls and e-mails as promptly as I can, I have had clients who demand immediate attention at times when I’m not available. Although you have the right to expect your lawyer to communicate with you, you should not have unrealistic expectations.
Mediation and arbitration
Mediation and arbitration are two ways of settling a dispute out of court. In both mediation and arbitration, both parties go before a third-party neutral called a “mediator” or an “arbitrator.” An arbitrator is like a judge, in that he can order the parties to take certain actions. Before you arbitrate, you have to sign an agreement that you will abide by whatever the arbitrator rules. So, even though an arbitrator is a private businessperson and does not work for the government, an arbitrator’s decision is still binding. A mediator is not like a judge, in that he can’t order you to do anything.
Most mediators and arbitrators charge for their services – each party agrees to split the costs. However, in Oklahoma, there is a free, state-run mediation service called “Early Settlement Mediation.” They have offices around the state; for more information on Early Settlement Mediation, click here.
Lawyers are often involved in selecting mediators and arbitrators. Many lawyers have relationships with mediators and arbitrators, and know which ones are the most skilled.
I generally prefer mediation to arbitration. In fact, I have never represented a client in an arbitration. I believe mediation is superior because, in a mediation, you have control over the outcome. In mediation, if you don’t want to accept a settlement, you don’t have to. In arbitration, you don’t have control over the outcome because the arbitrator can order you just as a judge could. To read my blog post about mediation, click here. To read my blog post about why I prefer not to arbitrate, click here. For an alternative viewpoint, written by two lawyers who prefer arbitration, click here.
What is my role, and my client’s role, in mediation?
I always accompany my clients to mediation. If the mediation is held virtually (as many mediations are now) I will log in as well. At mediation, I will generally let my client do the talking, and I will sit back and interject if I need to (I often interject when I need to bring up a legal point that may be too complex for my client to talk about.)
In allocating decision-making authority to my client in mediation, I generally follow the same course that I do in negotiation: I ask my client if he wants to make an offer or accept the other side’s offer. Sometimes I will not tell my client my own opinion as to the wisdom of accepting or rejecting an offer. Other times, I will advise and encourage my client to take a certain course of action. As with negotiation, the more complex the case is, and the less sophisticated my client is, the more advice I will give.
Are you interested in settling your case? Call the Persaud Law Office.
At the Persaud Law Office, we prefer settling out of court before we go to court. We have helped many clients negotiate, mediate, and settle their cases. If you are interested in our services, give us a call.