Settlement of Civil Disputes

Most civil disputes settle before trial. Indeed, the statistics are not even particularly close; recent scholarship suggests that between 92 and 98% of civil cases are resolved before trial, depending on the jurisdiction and claims. Despite the general uncertainty of litigation, settlement is perhaps the most predictable eventuality. Why do so many cases settle? When do they settle? And - perhaps most importantly - how can attorneys facilitate settlement in a manner that is most advantageous for their clients? This intensive course will consider these important questions. Unlike many law school classes, which focus on trials and appeals, our focus is the bargaining table. First, we will set the stage by examining the full spectrum of processes that are available for resolving civil conflicts, such as negotiation, mediation, arbitration, and litigation. Second, we will review basic tenants of interest-based negotiation theory that lawyers regularly employ to settle disputes. Third, we will review the timeline of most civil litigation from the filing of the complaint through enforcement of judgment. Using this timeline, we will consider "leverage points" when settlement is most likely. Fourth, we will study settlement agreements themselves. What goes into a settlement agreement? What are best practices for drafting such agreements? Can they remain confidential? What happens if one party fails to comply with the agreement, or there is a subsequent dispute about its terms? Finally, we will examine the rules of professional conduct that guide attorneys who negotiate settlement agreements on behalf of clients. Overall, students will emerge from this course with a strong understanding of why and how civil cases settle, including a practical sense of the mechanisms for recording and enforcing settlements. Grading: Letter Grade Only