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As an attorney seeking to assist a client in reaching a negotiated resolution of a dispute, your first task is to ensure your client understands and appreciates the realities and uncertainties of litigation. Getting your own client on board, however, is not enough. While in the privacy of your conference room the two of you can outline the most rational of term sheets, there will be no escape from the litigation unless and until there exists a willing negotiating partner. Often, your attorney counterpart and her client engage in an equally productive parallel process, and settlement discussions readily follow. Sometimes, however, you perceive the other side is not focusing on settlement. Perhaps your adversary lacks the experience or settlement mindset to discuss the realities of litigation life with her client. In other cases, your adversary’s client may avoid settlement discussions because of distrust or other hesitancy. Confronted with this barrier, you feel in your gut that, if only you could speak directly to the other party, you could explain the insanity of the litigation, the genuine desire of your client to resolve the dispute, and how precisely the settlement could be accomplished. But what to do about that pesky ethics rule precluding you from communicating directly with a represented party? To overcome this dilemma, you need an opportunity to speak with the other party, with counsel present. The customary approach is to propose to adversary counsel that there be a settlement meeting involving all parties and counsel. Such a meeting would enable you to make your pitch. The problem with proposing a settlement meeting is that the wisdom of participating will be discussed by your adversary and her client without you. Thus, proposing a settlement meeting to your adversary plays into your concern that, without your advocacy, the settlement initiative will be rejected before it has an opportunity to bear fruit. If you want to directly present to the other client the arguments for engaging in settlement discussions, you need to have adversary counsel present. Since it’s unlikely the three of you will bump into one another at the mall, you have to find another way. How about depositions? The minutes following the conclusion of a deposition can be most productive in promoting settlement. Consistent with the ethics rule, you can speak directly to adversary counsel and her client about the desire of your client to seek a negotiated resolution, your belief as to why it makes sense, and how to proceed. Your remarks are delivered directly to the other party, unfiltered by adversary counsel. You can answer questions, you can invite discussion, you can dispel skepticism about the sincerity of the settlement overture. In those instances where adversary counsel does not have a settlement mindset, you can educate. Equally important, the deposition process itself often enhances the meaningfulness of the subsequent settlement overture. The preceding hours presumably have involved the disclosure of information that helps the parties understand the strengths and weaknesses of their receptive positions. The parties likely have engaged in mental arithmetic to calculate how much the deposition has cost them in attorney fees, and are receptive to any suggestion as to how settlement will save legal fees. The deposition also has provided the party with an opportunity to see opposing counsel as an individual, rather than an anonymous author of distasteful pleadings. A post-deposition settlement pitch rarely turns into an on-the-spot substantive discussion about specific settlement terms. The parties have not come prepared for that purpose. However, a few minutes of collective discussion, with a follow-up phone conversation between counsel, often can lay the groundwork for a meaningful settlement dialogue. Robert A. Harris is an attorney at Zeldes, Needle & Cooper in Bridgeport, Conn.

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