Lawyers spend more time in negotiation and drafting rather than engaging in oral or written argument. Law firms representing a client in litigation and in-house legal departments may retain another lawyer whose sole role is to obtain a resolution through direct settlement negotiations or via an ADR process. Two sets of lawyers represent the client and although they work together and cooperate, they have distinct roles and unique functions. Resolution or “settlement” counsel functions independently of the litigation counsel by engaging in direct negotiations with the opposing counsel. Often the other side will have retained independent resolution counsel and these two sets of lawyers craft the resolution.
Settlement counsel usually has had no role in the discovery, litigation process or the underlying dispute. It is a fresh face brought into the dispute to change the dynamics of the adversary process. In a commercial transaction dispute, often the drafters of the contracts are the same lawyers representing the parties in litigation. These lawyers may have lost some of the requisite objectivity necessary to effectively represent their own client under changed circumstances. They may be too “invested” in the claim to provide impartial evaluation and advice. The new counsel does not have the baggage of “history” nor any adverse relations with opposing counsel, which often arises as a by-product of litigation. Settlement counsel usually has a different set of skills and is more familiar with case evaluation and resolution, negotiation theory, mediation and other forms of dispute resolution. Settlement counsel may also have had more prior relationships or positive experiences with opposing counsel, their client, the industry or the subject matter of the claim. A new beginning is thus obtained to solve the underlying problems that led to a case being initiated.
Excerpt from Robert A. Creo, Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner, George T. Bisel Company, Inc. 1,600 page treatise. (October 2006).
Mr. Creo has experience in evaluating complex commercial, catastrophic loss, death claims, and professional malpractice matters. He has designed processes to resolve multiple and recurring claims for both plaintiffs and defendants.
Life Insurance Misrepresentation and Fraud Claims
Robert A. Creo served as Settlement Counsel for a plaintiff firm representing hundreds of claimants in claims alleging improper solicitation and sales of life insurance products. There were groups of cases against several different insurance carriers. These were not class actions but the defendants negotiated global resolutions that mandated all claims be settled. This required a detailed process of not only reviewing each claim to obtain an appropriate allocation and application of the professional rules of conduct and governing aggregate settlements.