Over-Aggressiveness at the Settlement Conference: The Pitfalls of Hostility

Editor's Note: This is the second article in a special 10-part weekly series on settlement of litigation.

A settlement conference is supposed to be the polar opposite of a contested hearing. Unlike an on-the-record courtroom trial, the conference is an off-the-record attempt at mutual compromise and amicable resolution.

This distinction is well-known to attorneys. For a layperson and inexperienced litigant, however, the difference between an upcoming settlement conference and a contested hearing may not always be so crystal clear. The need for a party to understand this distinction, well in advance of a settlement conference, is particularly relevant on the issue of demeanor, and the need for both the attorney and party to avoid over-contentiousness and ineffective hostility at the settlement table.

It is always helpful for counsel to consider the possibility that a client may genuinely but erroneously believe that an upcoming conference will be, and is supposed to be, conducted as a highly adversarial process. Further, a litigant who mistakenly carries this preconceived notion may logically expect that his or her attorney will use the conference as an opportunity to rip holes in the other party's case through vicious cross-examination and loud oral advocacy. A party having such an expectation, however, may experience confusion, disappointment and even anger at his or her attorney, when counsel attends the settlement conference and deliberately presents very calmly and courteously to the other party and counsel. Further, such a party may unfortunately proceed to engage in his or her own personal yelling, screaming and other inappropriately rude behavior at the conference, simply because he or she did not have any real advance understanding of the process in the first place.

While such a litigant may conclude that his or her counsel is in fact unaggressive and thus “weak” at the settlement table, he or she may well be jumping to a very erroneous conclusion. To the contrary, the attorney may well be intentionally and wisely presenting in a calm and reserved manner so as help foster a foundation for mutual good faith and possible settlement. A problem, however, arises when the attorney has not previously discussed this concept with the client, or otherwise prepared the client for what to reasonably expect, and not expect, at the conference regarding demeanor.

Without such an advance discussion, the client may be blindsided in a manner that rocks the core of the attorney-client relationship and damages potential opportunities for settlement of the case. For this reason, it is wise for counsel to (1) generally assume that the client knows nothing about how and why a settlement conference runs, and then (2) dedicate time and effort in advance of the conference to clearly and logically educate and prepare the client on the distinctions between a contested hearing and a settlement conference, and the specific reasons for same. In this fashion, the client will more likely understand and appreciate the nature of counsel's anticipated conduct.

Successful settlements generally arise most easily when all parties treat each other cordially and respectfully, without unnecessary hostility, drama and histrionics. After all, how many attorneys have ever actually resolved a case at a settlement conference by shouting, finger-pointing, eye-rolling, and engaging in other disrespectful behavior? It is thus very important for counsel to explain this reality to any client who is truly interested in successfully negotiating a fair end to his or her case, irrespective of how he or she personally feels about the opposing party. A party benefits from an up-front explanation of the critical role of civility and respect at a settlement conference. While an important part of an attorney's role is to zealously advocate on behalf of a client's interests, the lawyer's words, actions and overall conduct and demeanor must all be logically intended and calculated to be effective through diplomacy rather than hostility.

Moreover, the lawyer may further consider explaining to the client that a settlement conference may strategically be neither the time or place to “try” a particular matter. In fact, in some cases, such a strategy might in the long run be detrimental to the client's own position, if the litigation does not resolve at the conference and instead proceeds to trial. Specifically, if there are potentially overlooked holes in the other party's position, the highlighting of such holes at the settlement conference might in some circumstances unintentionally educate the adversary and give him or her greater focus and time to repair those holes before trial. While a neutral mediator or panelist might logically point out to opposing parties the relative strengths and weaknesses in each party's case, this may not always be the wisest approach for a partisan adversary to take in a conference without a mediator or panelist present.

Further, counsel may wish to emphasize to the client that even if he or she attempts to aggressively “destroy” the other side's position through unofficial cross-examination at the conference, there is no record of same, as communications in a settlement conference are generally inadmissible at trial. In other words, a judge or jury will likely never hear or otherwise know about any part of an attorney's arguments and stellar performance in a conference room.

For a settlement to take place, the decision does not rest with a judge or jury, but is instead totally dependent upon the voluntary consent of both parties. Given the realities of human nature and behavior, a litigant or attorney is unlikely to voluntarily settle a case in a conference room when the other side is acting aggressively toward him or her. A party must therefore understand in advance that a settlement conference is arguably the worst place in the world for a party, and especially a trained professional such as a lawyer, to engage in a verbal altercation. Yelling and screaming rarely convinces anyone on the receiving end to settle. Instead, all such overaggressive conduct by a client or attorney tends to produce is reciprocal hostility.

Unfortunately, however, the reality is that there are times when some attorneys actually do charge rudely into a settlement conference, barking out demands to the other side as if on auto-pilot, in a manner which is wholly combative, unnecessarily hostile, and likely inefficient as a negotiation strategy. There may be many possible reasons for such conduct, including but not limited to professional inexperience. It is also possible in some cases that such an attorney somehow feels compelled to demonstrate to the client that he or she is in fact a litigation “tiger,” and a worthy warrior who will fight to a bloody finish to protect the client's honor. Such behavior might actually please a particular client in the short run. In the long run, however, if the case fails to settle, the client may have nothing to show for such a maneuver but mounting legal bills and stress. At that point, the same client who was so delighted to see his or her overaggressive lawyer attack the other party in a doomed settlement conference, might have very different feelings about the attorney's effectiveness and negotiation-by-outburst demeanor.

There are many highly persuasive and effective advocates who artfully and successfully negotiate for their clients in a calm and highly professional manner, without ever actually arguing or losing their cool or open-mindedness toward constructive settlement. In fact, some of the state's most esteemed, polished and successful attorneys deliberately and skillfully present themselves at all times in a highly respectful and even friendly manner in dealing with the opposing party and counsel in the conference room. This takes some practice in the arts of self-restraint, patience, self-control and basic social skills. Such talents, however, can be extremely valuable in effectively promoting positive talk and constructive movement at the negotiation table. Such conduct is also consistent with the role of an attorney as a professional, who injects appropriate composure rather than emotional chaos into the mix.

Overall, it is calm rather than rough waters that usually flow most easily to the shores of settlement. Accordingly, it is highly prudent for an attorney to not only prepare and educate the client on the appropriate protocol of civility at a settlement conference, but to actually lead by example and practice such civility as well.

Jones is a former Superior Court Judge in Ocean County. He retired from the Judiciary in 2017 and now practices mediation and arbitration.