Settle Your Case by Preparing for Trial

October 2009
By Judge Jerome LaBarre, Multnomah County Circuit Court.

Favorable Settlements Come From Transparent Trial Preparation

It's a reality today that over 99% of all civil cases filed in Multnomah County Circuit Court will settle. Approximately 15,000 civil cases are filed annually and on average just over 100 of those cases go to a jury trial. The truth is that after you file your case, it will most probably settle. While you can never be certain that any given case will settle, you can be certain that if your trial preparation is good - and the other side knows it - then your trial preparation will earn the most favorable settlement possible for your client.

As a settlement judge I frequently see lawyers on both sides who fail to maximize the settlement potential of their cases because they are obviously unprepared as they get near the trial date. And the other side can see it. With good trial preparation there is no downside. If you go to trial you are ready. If not, it helps you gain a good settlement.

As a trial judge presiding over large complex cases I have found that two documents really help the court and counsel understand what is needed to win at trial. These same documents can convince the other side to finally agree to a settlement.

Jury Verdict Form.

This could be the single most important court document in any case. It's what gets returned by the jury and determines whether you win or lose. It boils down your entire case to a small number of questions. It will guide you in trial preparation, help you develop a winning theme, and allow you to separate the wheat from the chaff in terms of witnesses and exhibits. A proposed jury verdict will also really signal to the other side that you are serious about trial.

Prepare the verdict form early and send it off to the other side. Then talk to opposing counsel about stipulating to it. Be transparent and the other side will know that you are ready for trial. Also, discuss with them whether you can enter stipulations on matters that will shorten and simplify the trial. They may include such things as admission of trial exhibits into evidence or at least as to authenticity, admitted facts, telephone testimony of witnesses and other similar matters. Trial judges will love it. Plus, stipulations make everyone's job easier. This also shows that you are ready in a way that promotes settlements.

Trial Plan.

Something else that I frequently require is a trial plan. My case management plans set a date for the filing of this document along with the proposed verdict form, proposed jury instructions and other trial documents. The trial plan is a road map through the jury trial. Each side sets out a proposed calendar of all of the events in the trial along with time estimates for how long each phase will take. Trial phases include voir dire, opening statements, witness time estimates with a listing of witnesses by type (but not necessarily by identity, to protect Oregon's unique "trial by ambush" tradition), final arguments and all other parts of the trial.

For scheduling purposes the judge needs to get this kind of detail on long cases in order to effectively oversee the case. This helps everyone prepare for trial and it underscores for the other side that the only alternative to a trial is to get serious about settlement.

There is an old adage that we must hope for peace but prepare for war. Letting the other side know that you are really ready for trial may be the single best way to finally settle that tough case.