Softening up an unrealistic defendant

Posted Thursday, February 20th, 2020 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I began trial in a visitation establishment case yesterday. While preparing for trial earlier this week my client (the plaintiff) asked me how I thought the case would end. I informed him it would likely settle halfway into my cross examination of the defendant. I was unduly pessimistic. About 15% of the way into my cross examination, and after the third judge-requested sidebar, we began settlement negotiations that resulted in a resolution better than what my client had proposed five months ago.

What my client attributes to clairvoyance, I attribute to experience. Unfortunately, and all too often, only when a defendant is subject to cross examination will that party and his or her counsel begin to think realistically about settlement. That’s a great reason to employ the strategy of calling the defendant as the first witness in the plaintiff’s case-in-chief.

In this case at hand, 14 months of litigation had left a paper trail of the defendant taking unreasonable and unjustifiable positions–including one contempt ruling with a number of adverse factual findings. The process of confronting her with these positions, and forcing her to explain how they could possibly be in her son’s best interests, left the judge understandably questioning why the case hadn’t settled. That led to a discussion with the judge and opposing counsel on the eight “sticking points” that hindered settlement, which led to the judge observing my client’s positions appeared reasonable (albeit, in a few instances, with some tweaking), which led to the defendant and her attorney softening their positions in a manner that the defendant had been unwilling to consider prior to her cross examination beginning. With the definite certainty of further uncomfortable cross examination, and the looming possibility of an even worse result if she left the decision to the trial judge, we finally put the settlement on the record six hours after the third sidebar.

Often the first time one can get a defendant to think realistically about settlement is after he or she has encountered a couple of cross examination body blows. Yet another reason plaintiffs should call defendants as their first witness.

4 thoughts on Softening up an unrealistic defendant

  1. Thomas McDow says:

    I learned much about trial practice and tactics from my brother Clarkson. He advised, “Your case never looks worse than when your client comes off the stand.” He thought the best time to settle was immediately after the opposing party testified.

    1. Thomas,

      There should never be a circumstance in which a party’s own testimony makes the case worse for that party. If your case [I mean this in a general sense, not in your own cases] looks worse after your client testifies you either did a very bad job prepping your client for cross-examination or you shouldn’t have taken the case to trial.

  2. Philip says:

    Excellent points. It’s funny how quickly we humans recalibrate our expectations when confronted with poignant, contrary evidence…now if we could only begin the softening BEFORE we gotta pay you guys to do it for us ?

  3. Joe Mendelsohn says:

    Good article. I found over the years, that calling the def in your case might cause some anxiety, but usually works to your advantage. A few body blows before the trial Judge seems to loosen up the settlement juices with a party who is holding out for unobtainable goals.
    Then you can get on to other important issues, getting the rest of your fee(from your escrow account) and moving on to the next case.
    Soon , the Calvary (Karen) will be coming to to your rescue.

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