At some point after a civil dispute enters the legal system, opposing counsel will likely engage in some form of discussion to resolve the case. If attorneys don’t initiate direct negotiations or early mediation, or if they do and the case doesn’t resolve, they are likely to receive judicial encouragement at a case management conference to voluntarily explore settlement through a court’s alternative dispute resolution program. Separately, courts use meet and confer requirements to promote settlement talks. If a case has not resolved and trial is approaching, attorneys are likely to find themselves at the negotiating table by judicial fiat. California Rules of Court, Rule 3.1380 authorizes a court to set one or more mandatory settlement conferences on its own motion.

Across the span of their careers, most civil litigators will spend more time engaged in settlement talks than they will in trial.1 For this reason, it’s important that they have a solid understanding of their professional duties while engaged in the settlement process, and specifically of new Rule 4.1 under the professional conduct rules that will go into effect on November 10, 2018 (“CRPC-2018.”)