Gordon Rees Scully Mansukhani Philadelphia Office Managing Partner William Shelley authored an expert analysis article, "Some Reasons Why Big Cases Do Not Settle–Sooner," in the January 15 issue of The Legal Intelligencer. Shelley presents the core problem behind lengthy settlement negotiations, "the longer cases are litigated, the more they cost. Particularly for corporate parties, this means more internal time is lost, and more dollars may need to be held in reserve over long periods which could be more productively applied elsewhere." Throughout his article he examines three issues that impede big cases from settling sooner and offers insight on efficient negotiation strategies that save time and money.
1) Plaintiffs Are Often Concerned That Putting Their Settlement Toe in the Water Early Leads to the Loss of Toes, Not Settlement
In this section Shelley identifies that "many defendants fail to recognize that in large cases, plaintiffs are often reluctant to settle early because although they may have done some pre-discovery investigation and filed a complaint, they may not have a clear picture of what their real potential recovery is early in the case." He advises a simple solution of realistic 'in the ball park' demands and offers that lead to settlements."
2) Lack of Authority/The Absent Decision-Maker
"In our current corporate environment, final decision-making authority has been increasingly centralized with remote decision-makers. If you do not have that remote decision-maker's attention, real progress becomes difficult. This dynamic of corporate decision-making is exacerbated in large cases where it often takes appreciable time for a case to wind its way through the corporate organizational chart until it hits the right person to make a decision. It takes time for a company to digest a major case where the money at stake is substantial.” To accelerate the settlement process, Shelley recommends, “it is critical to get the real decision-maker's time and attention, whether in person or not, in order to get a big case settled. Until that digestion process happens, you are likely to have a settlement process, but no settlement."
3) 'Externalities' to the Substantive Merits Impacting Case Resolution
Shelley identifies 'externalities' such as financial issues of a party, outside counsel case demands, and lawyer dynamics that may slow the settlement process. He suggests, if these 'externalities' are carefully evaluated, there are often work-arounds to help the settlement process.
Shelley wraps up his article with a straightforward takeaway: "Outside and in-house counsel need to look more carefully and invest more time and effort at thinking their way toward early settlement. Settlement evaluation should be an early step, not an afterthought."
To read more about Shelley's insight on streamlining and speeding up the settlement process, please click here to read the article in full.
Shelley is the founding and managing partner of the firm’s Philadelphia office, which opened in 2013. His practice primarily involves complex contract litigation and business tort actions. His contract and business experience includes service as an Associate General Counsel at Sony Corporation of America. Shelley is an elected member of the American Law Institute, is listed in Chambers (2012-2016) and has been listed in Best Lawyers in America since 2006.
Gordon & Rees is a national litigation and business transactions firm with more than 800 lawyers in 47 offices across the United States. Our lawyers provide full service representation to public and private companies ranging from the Fortune 500 to start-ups. Founded in 1974, Gordon & Rees is recognized among the fastest growing and largest law firms in the country and continues to climb the ranks of both the Am Law 200 and The National Law Journal. Additionally, in 2017 Law360 ranked the firm among the top 50 largest U.S. firms and The American Lawyer ranked the firm among the top 35 on its Diversity Scorecard.