– James E. Lukaszewski, ABC, Fellow IABC, APR, Fellow PRSA, PRSA BEPS Emeritus
If you are an attorney, work with or have attorneys in litigation, here’s an interesting, relevant, recent story you can relate to. This is also a story about leadership.
A couple months ago, I was asked by a local religious organization to help them figure out how to help prepare for some pretty nasty publicity. A lawsuit was filed months before, just after the Minnesota Legislature passed a law (in 2014) extending the statutes of limitation on child sex crimes in the state until June 2016. This law triggered dozens of sexual assault cases being refiled after the cases were previously dropped or stopped by former statutes of limitation. New cases also were filed.
This lawsuit was well underway, but failed after 14 months of legal work when the first major milestone, a motion to dismiss, was denied. Litigators were now working on a motion for summary judgment. My client was fearful that bad publicity could break at any time.
Please understand, while I am not an attorney, for nearly 40 years much of my Crisis Management practice has involved litigation, civil and criminal, as well as working with inside and outside counsel.
When I met with the pastor in preparation for a briefing on the status of the case with the attorneys, I asked whether settlement talks were under way. Because I am frequently brought in to these matters late, this is usually my first question of the client and of the attorneys.
I was told the litigators felt it was “premature” for settlement talks. My response was that in view of having lost the motion to dismiss, the likelihood – already very tenuous – of a successful motion for summary judgment was close to zero. The motion to dismiss failure had consumed 14 months. The motion for summary judgment would likely end in failure and consume another 13 to 15 months.
All this while, the victim who was assaulted at age 15 for three years by an assistant pastor (50 years ago), would be forced to suffer another three long years before any thought of a settlement would occur.
If you want a real insight into the reputational difficulty of lawyers, this case is a good example. It was being conducted as a legal procedural, rather than on empathy and victim sensitivity.
Put yourself in her shoes. From her perspective, every day of her suffering is worth say, $10 to $25,000, maybe more. That’s what her husband thought.
As with other victim cases like this one, I recommended that the pastor seriously consider immediately hiring a second law firm, independent of the litigators, to begin meeting with the victim, her lawyers and the victim’s family to get settlement started.
It is re-victimization that drives my thinking here.
Understand that approximately 95% of cases filed, civil or criminal, are ended before getting to trial. In criminal cases, more than 90% never go to trial, as most are settled with a pre-trial guilty plea. Cases can be settled, tossed out, go into arbitration, mitigation, mediation or are abandoned. Our legal system is designed to resolve legal matters far ahead of the actual trial. This is another justification for my aggressively recommending settlement talks promptly and early. The odds of any of these cases ever getting to trial is very low. Why subject the victim to five additional years of suffering, fear and doubt, to find out what? The case will never reach a courtroom.
A few days later, on the day of my briefing, to my surprise, the pastor surfaced the separate counsel idea all on his own. The litigator was flabbergasted, saying, “I’ve never heard of that.”
A very predictable discussion followed: “We are in the middle of preparing our next motions . . .” “It’s really premature for settlement talks.” “We haven’t completed our investigation of the plaintiff.” (I’ll get back to this.) And for a second time, “I have never heard of this approach before.”
When it became obvious that the pastor was serious, the litigator, in a sensible turnaround, volunteered to take on the additional responsibility, “at the right time.” The pastor responded, “How about by this Friday.” It was Tuesday when this conversation occurred.
Late Thursday, the litigator called the pastor to tell him that, a couple of hours after his first contact with the victim’s lawyer, the lawyer responded that they would take nothing less than a very low six figures. This was an extremely important development. We were just looking to get discussions going and the plaintiff responded with a remarkably affordable number.
Church leadership had been sleepless for months, fearful that a settlement or verdict would be in the multimillion dollar range. I suggested that they respond to the victim’s attorney with a check for the full amount within 24 hours.
The pastor and I then had a wonderful discussion about the beauty of simply writing a check and helping end the lifelong suffering of this woman without the usual haggling that always accompanies these processes and repeatedly re-victimizes. The pastor agreed and I thought that was it. But wait.
It turned out that the church’s attorneys immediately opposed paying anything until there was a thorough investigation of the victim’s health status and how much she’d spent directly on treating her victimization.
When I heard this I was dumbfounded. We had a settlement amount that was literally a heavenly gift, yet the litigating attorneys insisted on demeaning, disparaging, discrediting and seriously re-victimizing the woman. What’s with these people?
Had I been present for this discussion my response would have been, “Are you nuts? What’s the point? What does it matter?” Believe it or not, there was a serious discussion by these attorneys about hiring an investigator to find this stuff out. Actually, I felt it was kind of on the sick side of things. I would have urged again that the church write a check and get it to the victim’s attorneys, notifying the court of the settlement, and forget any kind of investigation.
A few days later I found out that the church settled for high five figures. Our litigator adamantly opposed simply “giving in” and convinced the pastor to respond with a lower offer. The victim immediately accepted. I guess the attorney was fearful that his buddies or the insurance company would call him a sissy or a coward for paying the face amount of the victim’s response.
Sadly, I thought the church missed an opportunity to live up to its own belief system of finding forgiveness through generosity, charity and kindness. The lawyer lived up to his reputation of getting in the first punch and a last punch, even when no punch was required.
No public communication was ever needed and the only internal communication simply stated that the case had been settled and the entire matter sealed.
When you think about it, this case was actually settled in 72 hours after more than a year of legal jerking around, plus the prospect of jerking around for another 15 months on another failed major motion.
The point is, right now, the settlement timing is generally the litigator’s call, unless the judge gets impatient and starts asking questions. The lesson is, even in this case, litigators get to litigate and pugitate. It will scare the pants off the litigator, but I always urge that the settlement process begins coincident with or even before the litigation begins in the context of reducing the victim’s suffering.
The truth is only a handful of my clients have taken this approach . . . but I am batting 1000 so far. About 72 hours from start to finish.
Once litigation begins, there is tons of testosterosis banging around, which ignores the human factors in favor of legal process.
The major pushback question from the legal side is: How can you start settlement talks when you know so little about the situation?
This is an excellent, rational question that fails to recognize the irrational nature of victimization. But how many settlements have you seen that are actually rational? How many victimizations are rational? The question settlement answers for the victim is: “How can we put your suffering to rest?”
The process is easy. Your settlement counsel arranges to meet with the victim and or their attorney. They introduce themselves and the settlement counsel asks a very simple question, “What will you need to get your life back to normal? Or to start moving toward a better life?”
Three powerful lessons some quickly to mind:
- The check you write today is the smallest check you will ever write.
- If you enter the negotiations with, “No way,” as your guiding principle, you will eventually write a very, very big check.
- No one that matters is keeping score. Rapid settlement is in the interest of a calmer conscience for the lawyers and perpetrators and peace of mind for the victim. What if the victim was your daughter, son, father or mother?