Most cases settle. A trial lawyer's last act, therefore, often is preparing a settlement agreement. While a settlement agreement is not always necessary (sometimes making payment, exchanging releases and filing a voluntary dismissal suffice), it remains the norm. So, a well-crafted settlement agreement should be in every litigator's toolbox. Nonetheless, we have all received from opposing counsel a proposed agreement that is inadequate. And there are countless cases where a settlement agreement itself becomes the basis for a lawsuit, resulting in the parties' litigating over an agreement that had "settled" their dispute.
Although drafting a settlement agreement should be standard fare for every litigator, a "checklist" of terms doesn't cut it. For every case, one needs to think through the provisions to be set forth. A suggested "best practices" approach for a straightforward commercial case is described below.1
Remember the Basics
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