Howard M. Erichson (Fordham University School of Law) has posted Settlement in the Absence of Anticipated Adjudication (Fordham Law Review, Vol. 85, Forthcoming) on SSRN. Here is the abstract:
This article considers the importance of a realistic path to adjudication for civil litigants. In the absence of such a path, plaintiffs and defendants lack settlement leverage that reflects the merits of their claims and defenses. Moreover, in the absence of a viable path to adjudication, plaintiffs face a greater risk that their attorneys’ self-interest in settlement negotiation will deviate from their own. Written for the Fordham Law Review symposium on Civil Litigation Ethics at a Time of Vanishing Trials, the article analyzes conflicts of interest that arise in settlement negotiations. Obstructions to the path to adjudication — such as overbearing judicial settlement pressure, lengthy trial delays, and class certification solely for settlement — exacerbate lawyer-client conflicts of interest. A realistic path to adjudication, by contrast, better aligns the lawyer’s interests with those of the client.