Settlement in the Absence of Anticipated Adjudication

15 Pages Posted: 15 Apr 2017  

Howard M. Erichson

Fordham University School of Law

Date Written: April 13, 2017

Abstract

This article considers the importance of a realistic path to adjudication for civil litigants. In the absence of such a path, plaintiffs and defendants lack settlement leverage that reflects the merits of their claims and defenses. Moreover, in the absence of a viable path to adjudication, plaintiffs face a greater risk that their attorneys’ self-interest in settlement negotiation will deviate from their own. Written for the Fordham Law Review symposium on Civil Litigation Ethics at a Time of Vanishing Trials, the article analyzes conflicts of interest that arise in settlement negotiations. Obstructions to the path to adjudication — such as overbearing judicial settlement pressure, lengthy trial delays, and class certification solely for settlement — exacerbate lawyer-client conflicts of interest. A realistic path to adjudication, by contrast, better aligns the lawyer’s interests with those of the client.

Keywords: Vanishing Trial, Settlement, Conflict of Interest, Settlement Class Action

Suggested Citation

Erichson, Howard M., Settlement in the Absence of Anticipated Adjudication (April 13, 2017). Fordham Law Review, Vol. 85, Forthcoming; Fordham Law Legal Studies Research Paper No. 2952505. Available at SSRN: https://ssrn.com/abstract=2952505

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8233 (Phone)

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