Negotiating the Ethics of Settling a Product Liability Suit

According to recent estimates, over 90% of all civil cases settle. Product liability cases are no exception ' a small percentage are tried in court to conclusion. Thus, every product liability litigator has or likely will play the role of settlement negotiator during his or her career. Yet many litigators are not aware of or do not understand how their professional responsibilities come into play at the settlement table. One central reason for this blind spot might be the contradictory nature of negotiation. On one hand, a lawyer is expected to be fair and honest, but on the other hand, to be effective, a negotiator often needs to mislead his or her adversary to achieve the best possible outcome for his or her side. Indeed, negotiation has been analogized to a game of poker, where a negotiator hopes that the adversary will not be able to judge the value of the other player's hand. So how does one achieve the best possible “win” at the settlement table while still staying within the bounds of ethical conduct required of all attorneys? We offer the following five “rules of the game” to help provide guidance.