Settlement Counsel

It is often said in discussions on the future of the practice of law that the days of the general practitioner are numbered. Lawyers in the future must specialize.

One emerging specialty in Canadian civil litigation is that of settlement counsel.

A party to litigation retains two lawyers – one performs the standard role of litigation counsel whose objective is to successfully prosecute or defend the action. The goal of the other is to negotiate a settlement out of court.

The two lawyers work as a team. They share all of the same information. They communicate fully with each other and with the client.

There are clear advantages to this arrangement.

One is it removes the apparent conflict in the position of litigation counsel whose fees are usually calculated on the basis of time spent. Settlement, in particular early efforts, can substantially shorten a proceeding. If settlement responsibility can be handed off to an independent lawyer, at least the appearance of that conflict is removed.

By using settlement counsel a client can also have confidence that every appropriate effort to end the litigation early is being watched for and pursued.

When settlement discussions are referred to settlement counsel, litigation counsel’s focus and time in preparing for the hearing is not interrupted. Furthermore, as long as the arrangement is clearly spelled out to the opposing party, they know that trial preparation is continuing parallel.

Separation of the two roles may also help keep lines of communication open: the opening for settlement discussions often narrows, as litigation positions harden.

There is also the benefit that comes from any specialization: the more you do it the better you get. Over time separate negotiation and litigation specialties can be expected to deepen. This results in better service for the client.

Clients may recoil at the thought of two sets of fees instead of one. The extra expense will not be appropriate for every case. However clients will recognize there are significant savings to be had where cases settle early.

Further reading: The Canadian Case for Settlement Counsel; What Are Settlement Counsel?