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Citation: 5 Litigation 7 1978-1979

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Negotiation and Settlement


Better is halfe a lofe than no bread.
English ColloquialSaying
Lawyers resolve most of their cases-85 to 90 percent of
them-by negotiation and settlement. This is because
settlement is a speedier and less costly way of resolving
disputes than trial and involves no appeal. Settlements
also sometimes provide a more satisfactory result, and
they remove an otherwise intolerable burden from the
judicial system. The articles in this issue focus on various
aspects of this process.
Judge Eugene Lynch begins with a discussion of the
role of the court in negotiation and settlement. He examines techniques for both lawyers and judges at the formal conference. Jon R. Waltz and J. Patrick Huston address the importance of the rules of evidence in the settlement process. They focus on Federal Rule of Evidence
408 and analyze the admissibility in later litigation of
discussion that takes place during negotiations. Professor James J. White provides both an overview of a
range of techniques, or styles, and thoughts about nonverbal aspects of negotiating.

Michael L. Cook and Marcia L. Goldstein treat the


problem of settling with a bankruptcy trustee. They
detail the procedure for obtaining court approval of settlement with a trustee and discuss the practical problems
involved. Kevin M. Forde treats the problem of settling
class actions, where-he points out-the trial is
sometimes less complicated than the settlement. Louis
M. Natali writes about plea bargaining, a kind of
negotiation that may involve a variety of compromises
and some acute ethical problems.
In their article on settlement of commercial cases,
Bartlett A. Jackson and Auban Ann Eisenhardt emphasize that lawyers must continuously assess their cases
and advise their client while they advocate the client's
position. e. robert (bob) wallach treats settlements in
personal injury cases, from preparation to the assessment of "victory." Palmer Brown Madden concludes our
theme with an article on drafting settlement agreements.
He discusses both controlling legal principles and pitfalls
to be avoided in drafting.
J. Berry St. John, Jr.
Associate Editor

Robert M. Smith
Associate Editor