When Settlement Counsel Strengthens Litigation Strategy

When Settlement Counsel Strengthens Litigation Strategy

In an article for Thompson Coburn LLP, Edward A. Cohen defines settlement counsel as an attorney who is engaged exclusively to help resolve a dispute through negotiation, independent of trial counsel. While many litigators manage both trial preparation and settlement discussions, Cohen argues that separate settlement counsel can provide strategic and practical advantages in the right circumstances.

Cohen notes that complex cases—especially those involving multiple plaintiffs, defendants, or insurance layers—can consume significant time in settlement negotiations just as trial preparations intensify. In these situations, having settlement counsel handle negotiations allows trial counsel to focus entirely on trial readiness, avoiding divided attention that could compromise either effort. This separation of responsibilities, Cohen explains, can be particularly valuable when pretrial tasks and last-minute judicial issues demand concentrated attention from the trial team.

Beyond logistics, Cohen identifies a psychological dimension. Clients and trial teams may prefer their trial counsel to maintain an unwavering “game face” focused on winning in court, while settlement counsel can pursue resolution with a collaborative mindset. This division of tone and function can improve the quality of both efforts.

Cohen emphasizes that the decision to engage settlement counsel depends on timing, case complexity, and the working dynamics between opposing counsel. He also clarifies that settlement counsel do not replace mediators or in-house counsel; instead, they complement them, improving coordination and readiness for mediation.

For managing partners, Cohen’s takeaway is pragmatic: while not suitable for every matter, settlement counsel can be a cost-effective litigation strategy in cases where complex negotiations risk undermining trial preparation or client focus.