Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better

16 Cardozo Journal of Conflict Resolution 63 (2014)

University of Missouri School of Law Legal Studies Research Paper No. 2014-06

39 Pages Posted: 6 Mar 2014 Last revised: 1 Nov 2014

John Lande

University of Missouri School of Law

Date Written: 2014

Abstract

Although the ostensible purpose for pretrial litigation is to prepare for trial, such preparation is inextricably intertwined with negotiation because the expected trial outcome is a major factor affecting negotiation. Indeed, since most litigated cases are settled, good litigators prepare for negotiation at least as much as trial. The lawyers interviewed for this article, who were selected because of their good reputations, described how they prepare for both possibilities. They recommend taking charge of their cases from the outset, which includes getting a clear understanding of clients and their interests, developing good relationships with counterpart lawyers, carefully investigating the cases, making strategic decisions about timing, and enlisting mediators and courts when needed. The lawyers overwhelmingly suggested starting negotiation at the earliest appropriate time. Reaching agreement sooner generally produces the benefit of reduced litigation costs as well as reduced time that parties invest in litigation. Lawyers produce better agreements when they focus on both sides’ interests because this enables them to create value, even in supposedly zero-sum negotiations.

Keywords: litigation, negotiation, settlement, dispute resolution, ADR, clients, opposing counsel, practice, early, information, investigation, discovery, efficiency, satisfaction, empirical research, create value, zero-sum

Suggested Citation

Lande, John, Good Pretrial Lawyering: Planning to Get to Yes Sooner, Cheaper, and Better (2014). 16 Cardozo Journal of Conflict Resolution 63 (2014); University of Missouri School of Law Legal Studies Research Paper No. 2014-06. Available at SSRN: https://ssrn.com/abstract=2405625

John Lande (Contact Author)

University of Missouri School of Law ( email )

Hulston Hall
Columbia, MO 65211
United States

Paper statistics

Downloads
201
Rank
123,302
Abstract Views
932