Book review of "Effective Approaches to Settlement: A
Handbook for Lawyers and Judges" by Wayne D. Brazil. Clifton, N.J.: Prentice Hall Law & Business 1988

Levine, David I.

Ohio State University: Knowledge Bank

Book Review
Wayne D. Brazil,* Effective Approaches to Settlement: A
Handbook for Lawyers and Judges (Clifton, N.J.: Prentice Hall
Law & Business 1988).**
Reviewed by David I. Levine.***
Litigators know that the vast majority of their cases will settle.
For the most part, their uncertainty is not in whether the case will
settle; rather it is in when will the case settle, how settlement will be
broached, will a third party help in the process, and what will be the
terms of the settlement. However, despite its enormous practical im-
portance to the litigation process, most litigators have honed their
settlement techniques haphazardly. The prevailing assumption is that
they cannot be learned systematically: only experience and experimen-
tation are effective teachers.
From the judicial perspective, settlement has been a somewhat enig-
matic process. Judges have always been delighted to have cases settle
because of the savings of scarce public resources-including, but not
limited to, their own time. Nevertheless, until recently, the settlement
process was not a major concern of many judges. Settlements "hap-
pened"; cases disappeared from the docket without judicial intervention.
Moreover, judges were not supposed to be involved in the business of
achieving settlements, which was solely the province of the lawyers. It
was unseemly for the judges to participate in the haggling. They were
to stay above the fray.
This view of the judiciary's role in settlement, however, has changed
dramatically. It seems that all trial judges (certainly on the federal
bench) are now self-styled "case managers." Taking their cues from the
1983 amendments to the Federal Rules of Civil Procedure, they have
become actively involved in the litigation process. They routinely issue
scheduling orders (Rule 16), closely supervise discovery (Rule 26), and
unhesitatingly sanction improper conduct (Rule 11). Not surprisingly,
they are also deeply involved in settling cases. The 1983 amendments
to Rule 16 expressly told judges that they ought to discuss settlement
with litigants. Judges who did not know it already quickly realized that
facilitating settlement was in their own interest. They want to move
* United States Magistrate, United States District Court for the Northern District
of California.
** Chapter 10 of this book was previously published in the Ohio State Journal on
Dispute Resolution. See Brazil, Hosting Settlement Conferences: Effectiveness in the
Judicial Role, 3 OHIO ST. J. Dis. REs. 1 (1987).
*** Professor of Law, University of California, Hastings College of the Law; A.B.
1974, University of Michigan; J.D. 1978, University of Pennsylvania.
JOURNAL ON DISPUTE RESOLUTION
their dockets along and nothing is more effective in promoting case
management than settlements.
Nevertheless, judges, too, must learn how to participate in the set-
tlement process if they want to be effective. Like the lawyers who
appear before them, judges have been forced to hone their settlement
skills by trial and error. Orientation at a judge's college or the Federal
Judicial Center is no substitute for experience and, unfortunately, ex-
perience takes time.
In his book, Effective Approaches to Settlement: A Handbook for
Lawyers and Judges, Magistrate Wayne D. Brazil has provided lawyers
and judges who want to enhance their settlement skills with a way to
shortcut the learning curve. Magistrate Brazil has a unique vantage
point to discuss these matters. As a federal magistrate in the Northern
District of California, he has personally hosted hundreds of settlement
conferences. In the process, he has had the opportunity to learn from
skilled settlors on his court, which is a leader in promoting various case
management techniques. Brazil has also been a litigator in a private
law firm and spent several years on the faculty of three law schools
before going on the bench. As a professor, Brazil did not confine his
research to the dusty tomes of the law library; instead, he conducted
important empirical research on many topics, including discovery' and
the appropriate role of judges in the settlement process. 2 In Effective
Approaches to Settlement, Brazil draws upon all of these experiences
and sources so as to create an extraordinarily useful book for lawyers
and judges.
Throughout the book, Brazil returns to two basic premises: (1) clients
and lawyers settle lawsuits, not judges (or other third parties); and (2)
reason is power. Because clients and lawyers settle lawsuits, the settle-
ment process must include all the actors and must respect their needs.
Because reason is power, the lawyers must be prepared to negotiate a
settlement on the basis of a firm grasp of the law and facts of the case
and a rational strategy for the settlement process. Most importantly,
they must convey these matters to the judge and the other participants
in a clear, rational and candid manner.
Brazil opens the book with a discussion of the advantages of the
settlement process over the trial process. Among these benefits, he
attaches special importance to the element of control in settlement.
1. E.g., Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals
for Change, 31 VAND. L. REV. 1295 (1978); Brazil, Civil Discovery: Lawyers' Views of
Its Effectiveness, Principal Problems and Abuses, 1980 AM. B. FOUND. RES. J. 217 (both
cited by the Advisory Committee in its 1983 amendments to the Federal Rules of Civil
Procedure).
2. W. BRAZIL, SETTLING CIVIL SUITS: LITIGATOR'S VIEWS ABOUT APPROPRIATE
ROLES AND EFFECTIVE TECHNIQUES FOR FEDERAL JUDGES (1985).
124
[Vol. 4:1 1988]
BOOK REVIEW
Negotiators obtain control over costs, the timetable of the final verdict,
the procedures used in seeking resolution, a client's privacy interests
and a range of results that adjudication cannot achieve. Although most
litigators are probably familiar with these ideas, Brazil's clear discussion
might be used to good advantage with a client who is initially reluctant
to consider any settlement or an unconventional approach to the settle-
ment process.
Brazil then presents alternatives to a judicially hosted settlement
conference. These options include mediation, mini-trials, summary jury
trials, arbitration and the use of neutral experts, as well as less-known
techniques such as the Northern District's Early Neutral Evaluation
Program? This chapter, which is an up-to-date review of ADR techniques,
would be especially useful for lawyers and judges who are interested
in alternatives but are unfamiliar with some of the latest variations. It
is also one of two chapters that concludes with a brief, intelligently
selected, bibliography.
Brazil devotes a chapter to a discussion of offers of settlement under
Rule 68 of the Federal Rules of Civil Procedure, including such important
(but rarely discussed) matters as res judicata effects and tactical con-
siderations. Brazil persuasively argues that with the decision of the
United States Supreme Court in Marek v. Chesney,4 the specter of
being unable to recover attorneys' fees presents defendants with a
powerful tool that can be used to settle cases.
In another chapter, Brazil thoroughly covers the law of confidentiality
in settlement negotiations. He identifies the historical background and
policy rationale behind Rule 408 of the Federal Rules of Evidence and
analyzes its application by the courts. He argues that there are many
circumstances in which "confidential" settlement discussions and com-
munications are discoverable and even admissible. Those who have
assumed that the rules of evidence will keep the settlement process
3. The author of this Review has worked with Magistrate Brazil in connection with
an analysis of the effectiveness of the Early Neutral Evaluation Program. Brazil, Kahn,
Newman & Gold, Early Neutral Evaluation: An Experimental Effort to Expedite Dispute
Resolution, 69 JUDICATURE 279, 280 n.1 (1986); Levine, Early Neutral Evaluation A
Follow-Up Report, 70 JUDICATURE 236 (1987); Levine, Northern District of California
Adopts Early Neutral Evalutation to Expedite Dispute Resolution, 72 JUDICATURE 235
(1989); Levine, Early Neutral Evaluation" The Second Phase 1989 J. Dis. REs. -
The program provides for the court to order the parties to a confidential evaluation session
hosted by a well-respected legal expert in the particular area of law. This session is
convened shortly after the first status conference in selected civil cases. After each party
presents his position, the neutral expert evaluates the relevant strengths and weaknesses
of the suit. The neutral expert then may develop into a "shuttle diplomat," encouraging
settlement through his development of specific analytical arguments. The attraction of
this program is as follows: at best, settlement occurs prior to extensive discovery with
little of the expense of litigation; at worst, the evaluation helps the parties to identify
which issues are actually in dispute.
4. 475 U.S. 1 (1985).
JOURNAL ON DISPUTE RESOLUTION
absolutely confidential should find this material unsettling. For example,
although Rule 408 safeguards offers of compromise and statements made
in "compromise negotiations," it does not protect claims. There is some
risk that a court would view the initial demand of a party as a description
of the content and contours of his or her claim rather than as an offer
of compromise.
As a way of protecting one's client, Brazil admonishes lawyers to
preface an opening demand or offer with a clear statement of intention
regarding the proposal. The lawyer should state explicitly that a dispute
exists and the proffered proposal is neither a statement of the client's
claims nor a full evaluation of their worth. Brazil offers other helpful
suggestions on how to maximize the chances that communications will
be protected by Rule 408 and presents various strategies on how to add
additional layers of protection when the rules of evidence are not
sufficient for the needs of a particular case.
The heart of the book is a multi-chapter analysis of the judicially
hosted settlement (JHS) conference. Brazil advocates this mechanism
because he has found it to be an effective means of settlement. He
cites various advantages of the JHS conference. In addition to cost
savings, a judge can give the parties an analytical focus and feedback
so as to maintain momentum. The judge can further provide counsel
and clients with realistic expectations of damage awards if the case
goes to trial as well as generally helping to create an atmosphere
conducive to decision-making. Although he is a fan of the JHS con-
ference, Brazil does not hesitate to point out substantial drawbacks. For
example, facts might be revealed in the JHS conference that would
affect the impartiality of a judge who later tried the case or would
disclose valuable proprietary information. Brazil further cautions that
the JHS conference is not effective in assessing the credibility of
witnesses. After presenting a general analysis of the JHS, Brazil turns
to setting up the case for settlement negotiations. He emphasizes the
need to develop a settlement strategy that takes aim at the pivotal
person ("real target"). The real target of persuasion may be opposing
counsel, an opposing party, an insurance company or even a client. In
each case, Brazil presents suggestions on how discovery can be framed
to maximize the opportunity for early and cost-effective settlement
negotiations. For example, if a party-opponent is the principle target,
Brazil argues that demand letters should be drafted with sensitivity and
depositions of the party should be conducted in a way that minimizes
unnecessary confrontation. Such an approach attempts to avoid putting
the other party on the defensive while informing him or her about the
case. If the real target is a client, Brazil suggests advising the client
to seek a second opinion from another lawyer as to the settlement value
of the case.
[Vol. 4:1 19881
BOOK REVIEW
In keeping with one of his major themes, "reason is power," Brazil
stresses the importance of preparation. Preparation means not just know-
ing the case intimately, but also having thought about the expectations
of the settlement judge, opposing counsel, and especially the clients on
both sides. Brazil is particularly compelling in discussing the need to
consider how the settlement process can be affected by emotions, even
if the nominal parties are institutions, rather than individuals. The book
also provides helpful guidance on preparing an effective written con-
ference statement that will earn the confidence of the host of the
settlement conference.
In anticipation of the JHS conference, Brazil emphasizes the need
to prepare an opening offer that can be explained rationally, but that
also signals a willingness to be flexible. His discussion of planned tactical
concessions is especially valuable. He debunks the stonewall approach
to negotiations; in his view, it is wiser to make early concessions in
order to generate momentum for settlement so that when more conces-
sions are needed to bring the parties to agreement, it will be the other
side's turn to make them. By planning and implementing tactical "re-
treats," a shrewd negotiator can protect a client from making late
concessions that are most threatening to the overall strategic goals. When
negotiations are stymied, Brazil offers suggestions on how to regain
momentum, depending on the nature of the problem (e.g. a lack of
information or trust). Brazil even endorses revealing the client's real
bottom line figure in certain negotiations. He is, however, careful to
explain the antecedent conditions for making this tactical move, which
he believes can be very effective if saved for the right moment.
Brazil concludes with a chapter for hosts of settlement conferences.
He offers suggestions on matters such as possible ways to structure the
conference. While he surveys various arrangements, he concludes that
private caucusing between judge and each side's counsel works best.
He likes private caucusing because it minimizes contact between opposing
counsel and the erection of adversarial walls. In addition, private cau-
cusing allows lawyers to reveal special difficulties they may have with
their client while permitting judges to be more candid because they
can be less concerned about appearances. During these sessions, he
encourages judges to ask counsel to change hats and present the op-
ponent's best case. If the attorneys refuse or weakly comply, he suggests
that judges could play the role of opposing counsel and argue the
opponent's case.
Brazil emphasizes the importance of place in facilitating negotiations.
He recommends that judges conduct most of the serious negotiations
in chambers. In his view, the use of judicial chambers helps create an
atmosphere of intimacy, informality, and confidentiality. At the same
time, he advocates that the other parties wait in the courtroom during
JOURNAL ON DISPUTE RESOLUTION
negotiations as a way to remind the parties of the consequences of
failing to achieve a settlement. Brazil also offers ideas on how to deal
with problem behavior of clients or attorneys. In remedying the abuse
of a client by his or her counsel, he stresses that the judge should be
careful to avoid even the appearance of interfering with the lawyer-
client relationship.
Finally, Brazil analyzes how settlement judges can make mistakes
that impede or even destroy the settlement process. For example, judges
who prematurely raise the question of damages may communicate the
idea that they have already decided the issue of liability. In so doing,
they lose the trust and confidence of one of the parties. Likewise, Brazil
discourages judges from displaying anger at a settlement proposal that
they believe to be outrageous. Such a reaction, however merited, places
the judge in an inappropriate role of being perceived as limiting recovery.
Brazil's judicious advice follows painful experience for he confesses that
he has made, and subsequently tried to avoid, many of these mistakes.
Overall, the book, and in particular the substantial material on the
JHS conference, is direct and compelling. Part of the impact comes
from Brazil's clear style of writing. In larger measure, it comes from
Brazil's extensive experiences and his personality. As a former litigator
and a current jurist, Brazil has seen at first hand what works and what
does not. As a former law professor, Brazil brings a healthy disinterested
perspective to his examination of the settlement process. Moreover, as
a professor who appreciates the value of empirical work, Brazil's views
have been shaped by his own substantial body of research, including a
recent survey of almost 1900 lawyers from four different regions of the
United States.' Finally, Brazil is not afraid to share his errors with his
audience. Time and again, he tells the reader that he knows that the
X technique is risky because he has tried it and obtained the negative
consequence of Y. This combination of personal experiences, empiricism,
and candor makes Brazil's advice extremely compelling.
My only complaint is that the book is a bit repetitious. I believe that
this is largely a function of Brazil's decision to divide his advice to
lawyers from some of the advice given to judges. As a result, portions
of later chapters overlap what was presented earlier and some war stories
get retold. The repetition, however, will be only a minor annoyance. It
should not distract any lawyer, whether experienced or fresh from the
bar examination, or any judge, even one who has sat on the bench for
many more years than Brazil has, from absorbing the valuable lessons
that are in this book.
5. See W. BRAZIL, supra note 2.
[Vol. 4:1 19881


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