Negotiating and Settling Tort Cases: Reaching the Settlement
Guy O. Kornblum
Reviewed by G. Steven Henry
Cite as 5 Litigation Commentary & Rev. 115 (December 2013)
The role of the advocate in litigation is changing. Settlement has become even more important in the litigation process, and mediation is a key component in attempting to resolve cases short of trial. This is even more true today than in the past because of the high cost of going through trial and the budgetary limitations which have been thrust on our courts in recent years, which have made it more difficult to get a case into the courtroom and through trial. In addition, courts and court systems have increased the pressure on litigants to resolve cases rather than seek a trial with firm management which emphasizes the negotiated alternative – particularly court supervised or private mediation – as an important part of the process.
Guy O. Kornblum, LCA Charter Fellow, has achieved the goal of authoring a comprehensive, and perhaps first of a kind, book on settlement strategies and negotiation, in the Second Edition of this book, "Negotiating and Settling Tort Cases: Reaching the Settlement," released earlier this year and published by the Thomson West Publishing Company and the American Association for Justice.
This is a 746 page treatise on the negotiation process including chapters on direct negotiation as well as all aspects of mediation. Mr. Kornblum's over 40 years of experience as a highly regarded trial lawyer shows through in his book, which is filled with outlines, checklists and sample demand letters and mediation statements in various types of tort related cases. There is something for everyone, from the newest lawyer to the most experienced.
In this book, Mr. Kornblum leads us through the negotiation process touching on all aspects and alternatives for resolving disputes short of trial. In Chapter 1, an Introduction to Effective Resolution Techniques, Mr. Kornblum sets forth what I view as the overriding theme of his book. He writes:
The approach to handling a client's cause and managing litigation has changed. Efforts are in process to develop a more cooperative approach to litigation, particularly during discovery.
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The public has become intolerant of the notion of the trial lawyer as a warrior or combatant. Lawyers who work in litigation as a problem solvers who can penetrate the process and assist in resolving a dispute, not perpetuating it, are what the public wants.
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A settlement usually represents the best economic day for a client, considering the present value of money, and the cost of taking a case into the pre-trial and trial stages and possibly through appeal (footnote omitted); the client has the uses of funds now rather than the hope of some recovery later.
As evidence of this Mr. Kornblum cites to a book by Professor Julie MacFarlane, "The New Lawyer: How Settlement is Transforming the Practice of Law" (UBC Press: Law and Society Series, 2008).
This book covers all aspects of the effort by the lawyer as an advocate for his or her client in the negotiation process. He discusses what must be done to bring a case to a negotiated resolution, using a lawyer's skill, experience, and knowledge to achieve this result. Throughout the book Mr. Kornblum stresses the need for diplomacy without sacrificing advocacy.
While Mr. Kornblum emphasizes early mediation as the most desirable approach to resolution because it avoids the ongoing costs and emotional drain on clients, he emphasizes that counsel must look for "plateaus," which he describes as "resting places at which the parties – independent of one another – must assess how the case is progressing, what needs to be done to ready the case for resolution by negotiation or trial, and what risks and expenses are posed by proceeding further in the litigation process." He states, "These plateaus are excellent places for a reassessment as to whether the parties should consider a strategy for bringing the case to a negotiated or mediated resolution."
In Chapters 3 and 4 Mr. Kornblum gives us tips and suggestions for directly negotiating tort cases. Chapters 6 through 11 focus on mediations, outlining the 10 basic principles for using the mediation process (Chapter 5), how to prepare for a mediation to give you your client the best chance for a successful end (Chapter 6), preparing the mediation statement (Chapter 7), preparing your client (Chapter 8), techniques for attending and participating in the mediation (Chapter 9), and getting closure (techniques which also apply to direct negotiation, Chapter 10).
Chapter 11, entitled, "Finalizing the Deal," discusses the various aspects of concluding a settlement, including a discussion of the content of written agreements and terms that may be included. Examples of settlement agreements are included.
Then, Mr. Kornblum provides two chapters on the negotiation of two types of cases: insurance "bad faith" (which is one of Mr. Kornblum's special areas of practice, Chapter 11), and wrongful death cases (Chapter 12), where he outlines a sample case and outlines the strategy for resolving it.
In the last two chapters, Mr. Kornblum discusses issues relating to confidentiality in negotiations (Chapter 14), and what the future holds for dispute resolution (Chapter 15).
Recently (as discussed in an upcoming article in Litigation Commentary by Mr. Kornblum), ABA President Laurel Bellows in her "President's Page," entitled, "Leading-Edge Opportunities," in the May 2013 ABA Journal (p. 8), described "Dispute Resolution" as one of the new areas of practice in our evolving profession. She said:
The expanding field of dispute resolution provides many lawyers with a way to be healers. Collaborative law agreements – where lawyers and clients agree that he goal is to do everything possible to keep cases out of court – are growing. Demand for mediation also is increasing. Interested lawyers can get on-the-job training by volunteering for court system programs that offer mediation as an alternative in cases from medical malpractice and probate to child protection and family matters. The ABA's Section of Dispute Resolution is at the forefront of these issues.
Mr. Kornblum's book is an excellent – if not invaluable – resource for all of us so that we can better serve our clients and seek an efficient and timely resolution of disputed matters in our role as our client's representative in the "dispute resolution" process.
Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from Hastings College of the Law, University of California in 1966. He is a partner at Kornblum, Cochran, Erickson & Harbison LLP with offices in San Francisco and Santa Rosa, California, which is a civil litigation firm handling cases all over California and out of state as well. He is certified in Civil Trial Advocacy and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of LCA and co-founder of its ADR Institute. He is also a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, and a Silver Member of the Elite Lawyers of America. He has been a Super Lawyer each year since 2006. He is author of "Negotiating and Settling Tort Cases: Getting to Settlement," published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America; 2d ed. 2013). His firm's website is www.kcehlaw.com. Mr. Kornblum is a strong advocate for mediating his client's cases before going to trial or arbitration.