There are few things as wasteful and painful as litigation.  And that’s from someone whose career started as a litigator and, after a long tenure in-house, now works for a litigation boutique! While sometimes it is simply unavoidable and necessary, any in-house lawyer can tell you that litigation is expensive, time-consuming, distracting, frustrating, risky, and very difficult to predict outcomes.  As a result, ending litigation is usually a great feeling (sometimes celebrated with bottles of expensive champagne).  Still, litigation rarely ends with a jury verdict or bench decision.  It usually ends with a settlement, i.e., an agreement by the parties to the litigation to end the matter based on some agreed upon terms.  Sounds simple, right?  It’s not.

A settlement agreement is an extremely important document and should receive the same level of attention to detail as any other complex contract your company might enter into.  There are many ways a settlement can go “wrong” and that is why the agreement is not something to leave solely to the outside lawyers once the “deal has been made.” In-house counsel need to be intimately involved with the documentation and execution of the deal.  Simply put, careers can end because of “bad” settlement agreements. You do not want to be on the receiving end of a settlement agreement that turns out NOT to be the deal you (and the CEO or Board) thought you had to end the litigation.  Since many in-house lawyers rarely deal with litigation, let alone settlement agreements, this addition of Ten Things will discuss some of the key things you need to keep in mind when settling litigation so you can do your best to make sure it’s really over:

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My friends who are outside lawyers are always interested in what is was like to be in-house counsel.  Besides being envious of the fact that I did not have to keep track of my time, they would (and still do) ask me “what do in-house lawyers want from outside counsel?”  I also keep in touch with a lot of the in-house lawyers I worked with or met over the course of 20+ years on the “inside.”  They often share with me the things they like and don’t like about outside counsel.  I recently had conversations with both “sides” and it got me thinking about how in-house lawyers are not good at telling their outside counsel what they want, while outside counsel are not good at asking in-house lawyers what they need.  So, I decided to try and crack this nut.  This edition of “Ten Things” focuses on what in-house lawyers really want from outside counsel.  It is written based on my in-house experience and from the point of view of a General Counsel (but I am pretty confident these points resonate with all in-house lawyers regardless of position, here in the USA and globally):

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