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Wrestling with the Judge Who Wants You to Settle

By Campbell Killefer

Federal Rules of Civil Procedure 16 (a)(5) and 16 (c)(I) expressly provide for a judge to preside over pretrial conferences, including settlement conferences. An increasing number of commentators find the practice improper, however, because a presiding judge who also serves as a settlement judge actively involved in settlement negotiations may lose the appearance of impartiality.

What are the reasons favoring the trial judge’s involvement? The presiding judge has personal knowledge of the case and will be more familiar with the facts, parties, and counsel than will an outside mediator or a colleague on the court. The presiding judge may also be in the best position to evaluate the merits of the case. In complex cases with many legal issues, it is more difficult for a mediator to quickly determine a party’s true chances of success and to know when counsel may be blowing smoke. Determining a proper settlement position may be aided if an experienced judge participates and lends his expertise in weighing the strengths and weaknesses of the case. Judges have more experience at trial than most litigators today and may be more skilled at determining how a local jury will react in a particular case. Some judges find that their ability to facilitate the parties’ settlement would be crippled if they were not able to participate actively in settlement conferences.

In addition, some judges can offset “distributional inequalities” that may result in unequal bargaining power in private negotiations involving parties with unequal sophistication and resources. J. Parness, “Improving Judicial Settlement Conferences,” 39 U.C. Davis L. Rev. 1891 (2006). Information provided by the judge can help the parties reach similar expectations about the outcome of a trial, which usually makes settlement more likely.

There are just as many reasons for caution against having a trial judge conduct a settlement conference in advance of a jury trial. The same public policy concerns that prevent settlement discussions from being disclosed to the jury should prevent them from being disclosed to the presiding judge. Offers of settlement or compromise and statements made during settlement negotiations generally are not admissible as evidence under Rule 408 of the Federal Rules of Evidence. Statements made in settlement talks are inadmissible because they may be prejudicial, and parties who believe their statements could be used against them in court may not speak up during settlement negotiations. The simple fact that a judge has access to settlement statements may stifle open negotiation.

Similarly, statements made in a settlement conference may prejudice a judge, and a party’s refusal to settle may affect his judgment on pending motions. A judge has a position of authority that he can use to leverage his views on settlement. Even without directly coercing a party, a judge’s statements or requests may unduly influence a party’s decision to settle or engage in settlement discussions. A plaintiff may leave money on the table, and a defendant may overpay, for fear of angering a judge who is strongly pressing for settlement.

A judge might use information that he obtained in a settlement conference in impermissible ways (e.g., using a tentative settlement figure obtained from settlement conference later to impermissibly mitigate a jury’s damage award). In addition, there is some fear that judges who participate in settlement conferences will lose their impartiality and become part of the sagas themselves. Once a judge is exposed to settlement positions and information about the parties’ evaluations of their strengths and weaknesses, those assessments may be hard for the judge to ignore. The judge may be tainted by the information obtained in a settlement conference, which may subtly influence his rulings on later motions.

What should counsel do if the presiding judge announces that he personally will conduct a settlement conference in a case headed to jury trial? Some fast due diligence and consultation with your client are needed.

Has the judge shown any partiality to any party (hopefully positive to you and negative to opposing counsel), or is he the model of judicial impartiality? What is your win/loss record on meritorious, as opposed to long-shot, motions? Are you confident in the strength of your liability case in front of a jury, and is your stance on damages reasonable? Is the judge known to be skilled and fair in settlement conferences? Are there other competent judges on the court who could step in as a settlement judge, or who could take over as presiding judge at trial if the original judge conducts a settlement conference and then recuses himself? What do your instincts tell you about whether the judge is “on a mission” to settle the case come hell or high water and will apply unmitigated pressure on the parties to settle at a figure you and your client may not like? These questions may seem imponderable, but you must at least make factual inquiries and then speculate on what the answers might be.

How can you politely avoid a presiding judge’s pressured involvement in a settlement conference? Before having to object formally on the record, counsel can suggest three reasonable alternatives. First, counsel can suggest and commit to conduct a private mediation in short order. It is helpful to have several names of well-known and respected mediators to offer on the spot.

Second, counsel can suggest that the judge explore whether someone else—another judge, magistrate, or special master—could serve as the settlement judge. Again, it is helpful to know the talents and case dockets of other judges on the court to offer the name of an alternative settlement judge.

Third, counsel can suggest that another judge take over the case as presiding judge if the initial judge insists, for whatever reason, on conducting the settlement conference. These suggestions sound better than “I object.”

If the presiding judge is not swayed by your suggestions and overrules your objection, two last avenues remain. You can tell the judge that you feel duty-bound to raise the issue with the chief judge. Alternatively, you can formally file a motion to recuse the judge in federal court under 28 U.S.C. §§ 144 or 455. That is a trigger few trial lawyers ever want to pull. To state the obvious, a party risks offending or angering a judge by asking him to recuse himself, and a motion to recuse is rarely successful before the presiding judge or on appeal.

A motion to recuse a trial judge who proceeds to conduct a settlement conference despite counsel’s objection would be very hard to win. Counsel would need to show, by affidavit or sworn declaration and a memorandum in support of the motion, that the judge has shown bias or prejudice under 28 U.S.C. §144. Alternatively, counsel must show that the judge’s “impartiality might reasonably be questioned.” 28 U.S.C. §455(a). The factual basis for the claim that the judge has shown partiality to the other party usually must be extra-judicial—that is, something outside the normal scope of the judge’s judicial activities (e.g., intemperate statements in a bar, investments with one of the party’s relatives). But a judge’s statements leading up to or during a settlement conference are not extra-judicial:

Judges constantly form personal opinions during proceedings. It may be wiser not to express such views, and almost always prudent to avoid epithets, but disqualification is almost never required where the judge’s opinions are based on the proceedings. Inaccurate findings based on those opinions may lead to reversal on appeal but not to recusal.

In re Martinez-Catala, 129 F.3d 213, 219 (1st Cir. 1997) (emphasis added).

Moreover, since the actual settlement conference is not conducted “on the record,” no transcript of the judge’s offensive, outrageous, or prejudiced comments about the parties, counsel, or the merits of their cases will ever come to light. In a judicial settlement conference, “what happens in Vegas stays in Vegas.”

Once the settlement conference is scheduled, how should you prepare? First, you must carefully prepare your client, almost as intensely as for his or her own deposition. A courtroom and separate jury rooms are far more intimidating locations in a settlement conference than conference rooms in an office building for a mediation. A judge wearing a robe appears to be a far more powerful authority figure than a private mediator in a business suit. You should discuss the process and substance of the upcoming settlement conference in detail and how you and your client should interact.

Second, provide short, practical written settlement statements in advance to the judge. Highlight your strengths, forthrightly deal with any obvious weaknesses, and summarize any important intangible factors that may not be apparent to the judge (e.g., a client’s health issue, the likely effects of press coverage). Bear in mind that the confidential settlement statement should not be filed with the clerk’s office, just as it is not served on opposing counsel.

Third, settlement conferences usually begin with a “plenary session,” with all parties and counsel present with the judge. But the session should be only a cordial, professional introduction of everyone involved and not a substantive discussion of issues. Plenary sessions that include substantive presentations are rarely helpful and often are counterproductive because counsel grandstand in front of their clients and no one acknowledges any weaknesses in their cases. Better to have merely a cordial meet-and-greet session and then allow the judge to conduct shuttle diplomacy, hopping from chambers to jury rooms to discuss the case separately with counsel and, if appropriate, the parties or representatives.

Fourth, after the case has survived any motions to dismiss, but motions for summary judgment are still pending, the judge usually applies the greatest pressure on liability issues, not damages. The judge may apply essentially equal pressure on the parties to settle because the right to recover at all is still in doubt legally. But once the case survives motions for summary judgment, I think that judges focus considerably more pressure on the areas of damages and, in particular, plaintiff greed (“pigs get fat, hogs get slaughtered”). Once the defendant has, in the judge’s eyes, crossed the threshold of offering “real money,” the pressure to settle will increase considerably on the plaintiff. If you are plaintiff’s counsel, you must prepare your client for such pressure.

Fifth, the longer a case drags on, due to the defendant’s flurry of motions, the more apt a judge is to pressure the plaintiff to settle for a figure the judge considers reasonable. Administrative pressure on the judge to clear out aging cases may lead to intense pressure on litigants in settlement conferences.

Finally, it is essential that you discuss with your client in advance two numbers—the opening settlement position and the dollar figure at which you tell the judge “No, Your Honor, that is our final number or we will proceed to trial.” Then stick to it. The judge may push back, cajole, make arguments, and speculate on how expensive, distracting, and stressful a jury trial will be. Because you and your client have discussed all those factors in advance, the answer will still be a polite but firm “No.” Then you will see whether the case will settle at your “no” figure, or at a more favorable figure, or whether you can finish your trial preparation instead.

Keywords: Trial procedure, settlement, judges

Campbell Killefer is a partner at Venable LLP in Washington, D.C. He gratefully acknowledges the assistance of law student Matthew Beville.

This article was excerpted from a longer one that appeared in LITIGATION, Volume 35, Number 3, Spring 2009 at page 17.

  • July 30, 2010 – If your article is correct, then how can Judge Wayne Mallia order us to sign an illegal, ambigious, settlement agreement and accept 40,000 from Midland Mortgage (MidFirst Bank) and Barrett Burk Wilson Castle Daffin & Frappier against our will? We never saw the settlement agreement nor did we agree to the illegal terms. Would this happen because we are pro se. The judge allowed an invalid Rule 11 letter to be signed and filed May 7, 2009. Google "ZOMBIE DEBT REFUSE TO DIE" and Prince Ella Green. If we dont sign this illegal S A, we can go to jail/fine. This is totally illegal. The case is on appeal at the 14th Court of Appeals and the 5th Circuit Court of Appeals. We can not trust the judicial system.

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