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. 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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