1. Mediate cases early, e.g. within the first few months of litigation!   It behooves all parties to settle the case BEFORE the attorney’s and clients ascertain the facts or law supporting or detracting from their case.  This sounds heretical, but most lawyers are lazy and do not begin to research their case until before a substantive hearing, mediation or trial.  Most lawyers only learn the facts of a case during a deposition, or mediation, when they are forced to sit and listen to their client (or the opposing party) speak.
  2. You attract more flies with honey than vinegar.  Be nice to the party paying the money. Make the lawyer or insurance adjuster have sympathy for your client.
  3. Ask the opposing side to help you settle the case.  Ask your opposition what does she or he think can be done to resolve the matter.
  4. Politely using the Socratic method (e.g. law school), ask the opposing side to help you understand the law/facts why his client does not want to pay what you proposed or why you should settle.  Maybe add that you want to learn the truth from the opposing lawyer, he’ll probably open up and spill the beans!
  5. If you are defense counsel for an insurance company, explain to the plaintiff’s attorney that there is a reservation of rights with serious coverage issues and if this case goes to trial and the defendant loses, there may not be coverage or an easy payment from the insurer .
  6. Encourage your client to have realistic expectations.  Usually sending a bill, or a written estimate for future attorney’s fees and costs to your client does the trick.
  7. Explain to an insured defendant that the policy has eroding limit provisions, also known as wasting policy limits, defense-within-limits, cannibalizing or self-liquidating limits, which will reduce the insurance coverage limits available to an insured as certain costs and expenses are incurred during the defense of an insured or payment of a judgment.
    1. If representing an insured defendant pursuant to a reservation of rights, explain the insurer may file a declaratory relief action to obtain a court order to withdraw from paying for the defense and may also obtain the right to recover its costs of defense due to lack of coverage.
  8. Blame the insurance adjuster or a third party for your client’s refusal to settle.  Explain to Plaintiff’s counsel that there is barely coverage so the adjuster is limited in what he can authorize to pay to settle.   Sometimes blaming a co-defendant or spouse who is interfering with settlement by encouraging litigation works.
  9. Get a bankruptcy attorney to send a pre-filing or credit counseling letter citing the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) so the plaintiff knows the defendant is serious about filing for bankruptcy relief.
  10. Use depositions where all parties are present to settle the case. I settle 75% of my cases this way.  Once my client brought a Ouija board to a deposition and afterwards the parties settled after  communicating with their deceased loved one who knew something about the dispute. This is a 100% true event.  (I have also had a dead client call me, but that is another story.)