Over the past 20 years Christopher Nolland has established a national practice as Special Settlement Counsel, acting as the primary negotiator for one party in a non-neutral role. Mr. Nolland has been engaged as Settlement Counsel in dozens of significant matters, primarily complex business and multi-party fiduciary disputes, including major trust and probate litigation, director and officer litigation, professional liability, intellectual property, and partnership and closely held business litigation. One focus of Mr. Nolland's Settlement Counsel activities has involved significant insolvency and litigation trustee matters.
Referred to as the "Settlemeister" in 1998 by Texas Lawyer, Mr. Nolland's Settlement Counsel practice has since been the subject of legal and business publications. A lead article appearing jointly in the Texas Lawbook and the Dallas Morning News noted that Mr. Nolland literally conceived and defined the concept of Settlement Counsel over 20 years ago.
The concept of engaging Settlement Counsel (or Negotiation Counsel) is both simple and nuanced. At its core it involves the separation of litigation efforts from negotiation and settlement responsibilities and the bifurcation of those two roles among different lawyers, optimally at different firms. It requires litigators to be secure enough to add to the team another member with distinct skill sets and experience without feeling threatened and with the confidence that such role bifurcation actually strengthens their litigation power.
The Settlement Counsel model exploits the structural benefits of litigators moving beyond the "jack of all trades" mindset. It allows the litigators and trial lawyers to be ultra-focused solely on the critical tasks and strategic decisions required by high stakes litigation; prevents them from being distracted (or worse) by settlement and negotiation matters; and sends the right signals to the opposing side that the litigators are ready, willing, and able - perhaps even highly desirous - of bringing the matter to closure through a fully litigated resolution. It is becoming the norm for sophisticated counsel and clients involved in major litigation and disputes, whether pursuing or defending against significant claims.
SETTLEMENT COUNSEL FEE ARRANGEMENTS
I enter into engagements as Special Negotiation Counsel on a variety of bases. The goal is to tailor the fee arrangement to the needs of the client and the particular dynamics of the case, as well as achieving a structure that makes economic sense for both me and the client.
I am unwilling to be engaged based on hourly billing. I take great satisfaction in knowing that my interests and success and that of the client are fundamentally aligned. Sophisticated clients realize that such alignment largely eliminates any actual or perceived divergence of interests that can result from an hourly billing arrangement.
THE CASE FOR ENGAGING SEPARATE SETTLEMENT / NEGOTIATION COUNSEL
Litigators are properly focused on litigation concerns, responding to discovery and pre-trial matters, preparing for trial, and pursuing post-trial and appellate matters.
Different skill sets are involved in developing and implementing a litigation strategy, as opposed to developing and implementing a settlement strategy, conducting the negotiations, and consummating the settlement. Although it is possible to have both good litigation skills and exemplary negotiation skills, this is not always (or even usually) the case.
Hard positions may be required in the litigation. Personal and/or professional disputes in the litigation may create "bad blood" or other issues between the litigators, interfering with settlement discussions.
Settlement overtures by the litigation team may convey weakness or concern. Separate Settlement Counsel, whose sole role is to unabashedly pursue settlement, is simply "doing their job" in seeking settlement.
Litigators may have their judgment distorted by short term events in the litigation. Day-to-day developments in the litigation may unduly affect the settlement and negotiation process, causing one side or the other to become overly confident (or unduly weak), particularly if dealing with the same attorney or law firm against whom they just had a significant victory (or loss) in the litigation, whether during pre-trial proceedings, at trial, or post-trial. Negotiation counsel may easily take the position that the "ups and downs" of the litigation, trial, or appeal are not terribly relevant to their mission.
Litigators may have their perspective clouded because they are physically, emotionally, or psychologically tired (especially as trial nears), or simply because they do not want to try the case. It may send the wrong signals or signs of weakness to the other side if the litigators are also the settlement negotiators. Separate negotiation counsel does not have the same pressures, strains, or direct involvement in the litigation, trial, or appeal.
Litigators may become "true believers" in their case. They may be so anxious to go to trial that they lose sight of the litigation downside and of the potential benefits of settlement. They may even view a settlement as capitulation and a "loss".
Progress in settlement discussions may cause the litigators to become less focused on the litigation because they believe a settlement is imminent or simply because the time spent in negotiation takes away from time available for litigation and trial preparation. Indeed, some adverse counsel may even consciously try to interfere with trial preparation by engaging in fruitless and bad faith negotiations with the litigators. Delegating negotiation responsibilities to Settlement Counsel helps ensure that the litigators won't decrease their litigation and trial preparation or lose focus.
The litigators will likely not have the time to fully focus on settlement; it will become a "step-child". Successful settlement efforts require a carefully planned and implemented negotiation strategy; not a "shoot from the hip" approach, squeezed in between litigation and trial responsibilities. Without such a plan, settlement may not be properly pursued and the opportunity for an optimal result may be lost.
BEST PRACTICES: ENGAGING SETTLEMENT COUNSEL FROM A LAW FIRM
SEPARATE FROM THE LITIGATORS AND TRIAL LAWYERS
Negotiation counsel and the litigators should be from different law firms. In addition to the factors set forth above, there are other reasons why engaging a lawyer not a part of the litigators' firm to act as settlement counsel provides additional value to the negotiation dynamics. First, their roles and functions are different and being from different firms underscores this dynamic. Second, if from the same firm there is a tendency for settlement counsel to be drawn into litigation activities or roles - or perceived to be by the other side. Third, by not being too closely identified with the litigators as a member of their firm, any hard feelings or other issues which may develop among the litigators are less likely to taint negotiation counsel and the negotiation process. Finally, opposing counsel will more fulsomely understand negotiation counsel's special function and discrete role if from a different law firm than the litigators.
There may also be external issues, pressures, and dynamics which are important to the negotiations but in which the litigators need not or do not want to be involved. Having separate settlement/negotiation counsel from a different law firm allows for better handling of sensitive information or dynamics and fewer people dealing with delicate issues.
BEST PRACTICES: TIMING CONSIDERATIONS
Settlement/negotiation counsel should be brought into the process as early as possible. For a number of reasons, it is ill-advised to wait until settlement negotiations begin in earnest to bring in negotiation counsel.
Negotiation counsel must become knowledgeable about the facts, the procedural posture of the case, the substantive strengths and weaknesses of the case, the settlement dynamics, the personalities of the players, and the prior negotiation history.
There must be sufficient time and opportunity to develop and implement a thoughtful settlement strategy and plan, not simply commence negotiations on short notice.
It is often important to develop a relationship with the other side's counsel and, perhaps, their principals prior to the "hardcore" negotiations.
A settlement opportunity may arise unexpectedly. Negotiation counsel must be fully prepared and "up to speed" so they can both recognize and timely exploit a "window of opportunity".
Early involvement allows negotiation counsel to properly time and coordinate their activities and schedule rather than being driven by events or undue time constraints.
Bringing in negotiation counsel at the inception of the case underscores that it is simply part of the ordinary course. If negotiation counsel first appears on the scene as negotiations are "heating up" it may convey (accurately or not) an undue anxiousness to settle.
Litigation developments may have a significant impact on settlement negotiations and vice-versa. The litigation strategy and the negotiation strategy should be coordinated from the inception of the litigation, or even earlier.
SETTLEMENT COUNSEL INQUIRIES
Because of the amount of time, energy, and focus which I dedicate to Settlement Counsel engagements, I am highly selective and take on relatively few such matters each year. To talk with me about whether I would consider being engaged in a case in which you are involved, email me at firstname.lastname@example.org to request a time for an initial phone call and, if appropriate, a follow on meeting.
Of course, any such email inquiry does not establish any attorney- client or other legal relationship and those communications are NOT confidential or privileged. Accordingly, do not send any attachments or transmit in the body of the email any confidential information.
National Law Journal ADR Champion Christopher Nolland
Mediator and Special Settlement/Negotiation Counsel. A Lawyer with Deep Negotiation Skills, Experience, and Attributes
Texas Lawyer Lifetime Achievement Award to Christopher Nolland. Special Negotiation Counsel in High Stakes Disputes. Adjunct Law Professor SMU Law School
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