This Article begins with an account of the lawyer’s role in settlement in what we might call the traditional litigation scenario—that is, litigation in which settlement negotiations are conducted in the shadow of anticipated adjudication. This Article then considers four scenarios in which the anticipation of adjudication is altered—resource inadequacy, judicial settlement pressure, lengthy calendar, and class actions not certified for litigation—and asks what effect we should expect each scenario to have on the interests of lawyers and clients regarding settlement. The final part asks what light this analysis sheds on the phenomenon of vanishing trials and concludes with a comment on the importance of anticipated adjudication to achieving justice in litigation settlements.
Howard M. Erichson,
Settlement in the Absence of Anticipated Adjudication,
85 Fordham L. Rev. 2017
Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss5/28