Given the care and attention lavished by lawyers and clients on preparation for trial, it is surprising how often settlements end up cobbled together in haste, leaving the spectre of satellite litigation over the meaning of the settlement agreement. Whether the cause of this imprecision is late-night drafting at the conclusion of a mediation or a fear of losing the opportunity to settle by creating difficulties in the drafting process, the result is generally the same: a sense of deja vu as dissection of the settlement agreement supplants analysis of the original claim. You would have thought that litigators would know better, but the number of cases involving problem settlements that reach the law reports (not to mention the newspapers) shows that there are still lessons to be learned.
Sometimes the failure of a settlement agreement to cover all possible eventualities is entirely understandable. The decision in the iPod/iTunes litigation, Apple Corps v Apple Computers [2006], which has recently been settled once and for all, is a good example. In that case the judge had to decide what the parties might have intended with regard to technology which could not have been anticipated in 1991 when Apple Computers agreed to pay Apple Corps $26.5m (£13.7m) to settle a dispute over its development of software for creating, editing and recording music.
