Lawyers and sophisticated clients know that when litigation reaches the point of a trial it's a crap shoot, and an expensive one at that. So, wise lawyers like the ones at Hale and Dorr LLP frequently explain to clients other options, including settlement.
One of the many lessons in the new book "Bend, Not Break," by high-tech entrepreneur Ping Fu is the power of retreat amidst threats ranging from being sued to a changing economy. Obviously those lessons are resonating since the book is currently 1,218 on Amazon.com. Fu began learning about that strategy when taken as a child as a political prisoner during the Cultural Revolution in China. She went on to be part of the team who gave birth to Netscape, founder of Geomagic, and member of President Obama's National Council on Innovation and Entrepreneurship.
Because of human error at her company Geomagic, the two enterprises bidding for exclusive contracts found out about each other. Legally, that violated the Non-Disclosure contracts Geomagic had signed with each. They sued. Since Geomagic was low on funds and was the defendant, no law firm wanted to represent it. Hale and Dorr, which later merged with William Cutler Pickering, stepped up to the plate. Then junior partner Victor Souto, after studying the details, recommended that Fu propose a settlement, which began with that now standard tactic of an apology.
Through the settlement talks, which Fu conducted herself, what emerged was the reality that the plaintiffs really wanted access to Geomagic's patents. It took a lot of talking but finally there was a negotiation which yielded a mutually useful solution. The former plaintiffs agreed to release Geomagic et al. from legal action, pay for two patents, and cover the legal fees.
In Chapter 7 "The Number One Strategy Is Retreat," Fu observes:
"Negotiating is not about winning a battle, or even positioning yourself to win ... By resolving conflicts before they escalate, respecting mutual interests, and engaging others with compassion, you can achieve something far greater than victory: peace."
Tort reformers such as the U.S. Chamber of Commerce might buy the right to distribute Chapter 7 to its diverse constituencies.
Side Note: Those in law firms responsible for developing new business have to pay attention to how they present their expertise, approach, and track record on the website. Fu found Souto by combing through a number of law firm websites.