5 Trial Lawyer • Summer 2022 and they can provide the closure that employee plaintiffs need to move forward with their lives. Here are some tips to help make your judicial settlement conference as productive and successful as possible. Most of the advice provided is applicable to any civil case. Analyzing potential Take a long hard look and analyze your case for its settlement potential. • Is your client desperately wanting to present their case to a jury or are they wanting to resolve the case short of trial? • Are the parties seeing the facts clearly and recognizing their weaknesses as well as their strengths? • Is there outstanding discovery that would be helpful in that understanding? • Are you facing an opponent that is notorious for a scorched earth, no holds barred, trial or die defense? • Or is the defense more reasonable and willing to talk about a realistic resolution? • Is this the right time to have a settlement conference or is it too early? Understanding possibilities Be real with your client. Have a conversation with your client well before your conference date about what they hope to accomplish and how those goals can or cannot be met through a settlement conference. Make sure your client has a good understanding of what is possible both in terms of monetary recovery and non-monetary considerations. There are things you may be able to secure through settlement that are simply not available at trial. For example, policy change may be on the table during a settlement conference. So might a neutral reference letter, which is a far more attainable goal than getting a glowing recommendation. Likewise, few if any defendants are willing to provide a letter of apology. The best you may get is an expression of regret. Confidentiality Follow your judge’s instructions as to what they expect to see in your confidential settlement statement and get that statement to your judge a couple of days before your conference to allow them to be prepared. Again, be realistic when discussing the strengths and weaknesses of your case. If there are particularly difficult factual or evidentiary issues for one side, let your judge know and tell them your plan for overcoming the sticky wicket if you have one. If you anticipate that dispositive motions might be successful for either side, let your judge know that as well. Remember, your confidential settlement memorandum and all conversations you have with the judge in your individual sessions remain confidential and will not be disclosed to your opponent. Your judge will not share any information you provide with the other side unless instructed to do so by you. Address the law Have a good grasp on the law relevant to your case and devote a section of your confidential settlement memorandum to setting out how those laws operate with your facts. Be prepared to address the interplay of federal and state law. Not only will it help you focus your analysis, but it will help your judge understand the issues. The chances of your judge having a background in employment law are slim. Not many of us on the bench are intimately familiar with the ins and outs of state and federal employment statutes or common law claims. Employment law changes rapidly. The pandemic has accelerated those changes and even those of us with extensive employment law experience have difficulty keeping up. The better we understand your case, the better we are able to work with the parties toward resolution. Know your numbers This may be common sense, but you would be surprised at how many attorneys either do not know the numbers or cannot access the numbers during their conference. Have a good working knowledge of your client’s lost wages (past and future), medical expenses (if any are attributable to their employment claims), and attorney fees and costs incurred to date. Know what offsets are likely to be argued by the defense and how your client’s subsequent employment may affect the numbers. It is difficult, if not impossible to have an effective settlement discussion without that knowledge. If you are comfortable doing so, share your calculations with opposing counsel prior to the conference. Keep an open mind Take a creative approach. If you have reached the end of the day and are close to resolution but cannot quite get there, consider asking your judge for a “mediator’s proposal” in which the judge gives both parties a number. If both parties say yes to the number, the case is resolved. If one party says no, the case does not settle and the declining party is not told that the other party said yes. Judicial settlement conferences are an underutilized tool, but they are a viable and cost-effective method for resolving those cases that can be resolved. Settlement conferences give the parties the opportunity to control the resolution of their disputes. Creative solutions can oftentimes put the parties in a better place than taking the case to trial where there will be a winner, a loser and the potential for years of appeals. If your case is in Multnomah County and you wish to schedule a judicial settlement conference, contact Chief Civil Judge Marshall’s chambers for assignment. Judge Shelley Russell serves at Multnomah County Circuit Court, 1200 SW 1st Ave. Portland, OR 97204. She can be reached at 971-274-0626 or shelley.d.russell@ojd. state.or.us.
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