The second misconception is that when a company makes a decision on a matter it creates a precedent. I think the fear of creating a precedent is usually an excuse to avoid making a decision. Precedent is a highly overrated concept. Every case settles or is decided or settled on its merits and the economic realities of the case. Settlement means compromise.

I don't hesitate to be the first to suggest a settlement process on behalf of my client - so long as the client agrees. I find some firms want to continue the litigation and discovery process, so we get to a settlement process at a later time. But, we usually get there.

Gavin Craig

Thanks to both of you for dropping by and leaving comments. It IS true that people negotiate on the merits but I recall having many discussions with the client about their timing: before or after a summary judgment motion for instance -- "because we don't want our opponent to think we don't have the confidence that we'll win." Maybe things have changed significantly since I left practice five years ago. (could it POSSIBLY be that long??) Hopefully, the entire bar is now familiar with interest-based negotiations and understands that litigation is "just a business negotiation being conducted in the courts."