By Cara O'Neill, Esq.
1. Dismiss the Action
If you are the plaintiff, you can settle a lawsuit by dismissing the action. Doing so is not without ramifications, however, because if you dismiss the action before a resolution is reached, the opposing side may claim to be the prevailing or “winning” party and ask for the reimbursement of attorney’s fees and the costs of litigation. Since litigation is expensive, the opponent’s tab could be in the thousands, if not tens of thousands of dollars, and this isn’t a bill you want to be unexpectedly footing.
The way around this is to ask the opposing side for a waiver of attorney’s fees and costs in exchange for a dismissal before actually dismissing the case. Most people are willing to do so, and if agreed to, both sides will bear their own expenses and you will be out of the case.
2. Open Negotiations
If you don’t want to dismiss the action without some form of compensation, or if you are willing to pay money for the lawsuit to go away, you may want to “feel out” whether the other side is interested in settling the case as well. Because it can be tricky, thought should go into both timing and approach. If not thought out, you will likely do your case more harm than good by appearing desperate.
For the best results, commonsense says to begin negotiations when your opponent is wearing down – not after a victory. Often times, however, the opposite happens, and it’s after a loss that you want to settle. That’s where restraint comes in. It is important to come from a place of strength by formulating convincing arguments regarding why a settlement is in your opponent’s best interest and to fight against the urge to beg or give away the farm.
3. Wait Until the Settlement Conference
If you have a weak case and can’t (or won’t) get out of the action, or if you are up against a cash-rich opponent, often the best approach is to wait until the eve of trial and to settle at the pretrial settlement conference. Not only will a skilled attorney facilitate the settlement, from a psychological perspective, this is when it finally sinks in to all parties involved that trying a case is expensive and risky. Because of this, most people are willing to put settlement money on the table. If the other side won’t budge, however, this is also the best time to get a dismissal with a waiver of attorney’s fees and costs.
Related Articles: 5 Key Strategies of Negotiations
Attorney and author Cara O'Neill, Esq. has practiced law for 18 years and currently maintains a bankruptcy practice at the Law Offices of Cara O’Neill.
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