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5 Litig. 35 (1978-1979)
Settlment in the Personal Injury Case: The Imperfect Art

handle is hein.journals/laba5 and id is 45 raw text is: Settlement in a Personal Injury Case: The Imperfect Art by e. robert (bob) wallach There is not one of us who does not relish the role of courtroom advocate. Not only do we receive admiration and awe for our daily struggle with the intricacies of mind and artifice in the courtroom, but we may also associate ourselves with the tradition of noble advocates of the past, from Socrates through Sir Thomas More. It is a comfortable notion with which to entertain our private selves. But in the reality of day-to-day practice, there is not one of us who does not acknowledge that the role of noble gladiator in a just cause is an illusion-at best, a momentary reality. The fact is that there is no one currently engaged in personal injury litigation, for plaintiff or defendant, who does not settle 90 to 95 percent of the litigation. Set- tlement-not the brilliance of cross-examination or the eloquence of final argument-is our most often used technique. Yet the art of negotiation-an art that not on- ly helps to preserve the rights of our clients, but con- tinues to pay the overhead and send our children to school-is the least taught, most ignored, and often, most abused skill of the trial lawyer. Despite recent advances in advocacy training in law schools, there is still a disdain for talking about the pro- cess of converting human pain and suffering or the con- sequences of death into dollars and cents. How difficult it is for the law professor to acknowledge that the vaunted preparation for the profession that fills the cur- ricula of our law schools leads ultimately to the resolu- tion of pecuniary rights in an arena populated by claims adjusters, claims committees, investigators and lawyers who have traditionally occupied the bottom rung of prestige in the hierarchy of our elitist profession. However, realizing that settlement is the art that we must strive to perfect if we are to fulfill the role of ad- vocate and fulfill our obligation to represent competently our client, plaintiff or defendant, let us engage in the great American pastime of trying to formulate Black The author is a partner in the law firm of e. robert (bob) wallach & David B. Baum in San Francisco. Letter rules-rules for the amorphous art of settlement. We begin our discussion with the adage that has af- flicted us since the first day we entered law school. Settle- ment discussions must not begin without the same preparation that any competent trial lawyer would bring to a trial. In any confrontation of opposing views, it is essential to move dramatically and impressively at the outset. This is generally plaintiff's potential advantage, though plain- tiffs often overlook it. An increasing number of defense lawyers are begin- ning to realize that they do not have to wait for the over- ture of settlement from plaintiff's counsel. Often, it is in the interests of the defense, and certainly in the economic interest of the insurance industry, to initiate settlement discussions. The quality of the settlement presentation by either side will be determined by its initimate understanding of the case, the witnesses, the parties, and the human in- tangibles. The opening salvo is the preparation of a settlement brochure or an extensive settlement letter. The elements of either are essentially the same. Flair of Persuasion First, a statement of the facts is necessary. This should be carefully phrased, detailed not only with the eviden- tiary facts of the occurrence but also with the human fac- tors that often determine the outcome of a personal in- jury case. It should be objective and not subject to the criticism that it has omitted salient facts that the oppo- nent will be able to rely on at the same time; it should be phrased in a way that carefully carries the flair of persua- sion for your client, much as a well-constructed opening statement would. The fact statement is followed by a profile of the client (plaintiff or defendant). This element of persuasion, often overlooked entirely, should be advanced as early in the settlement negotiations as possible. It requires the 15

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