As good as he is, even Cook County Circuit Judge John C. Griffin doesn’t settle every case that comes before him in the Law Division.
“Sometimes I come to the conclusion they’re not ever going to get the offer and demand to cross,” Griffin said. “That’s the goal in a settlement. It’s not about justice. It’s not what’s fair. It’s getting the offer and the demand voluntarily to cross.”
“I actually stop asking them to move, and then I make a recommendation,” he said.
He writes it on two pieces of notebook paper: “Court recommends … ” — and he cautions mediators to be careful to guard their credibility by spelling “recommends” correctly.
He takes the notebook paper out to the courtroom and gives one sheet to each party with strict instructions not to open it until they separate to avoid unneeded drama. The parties are told to come back to chambers one at a time to say whether they accept.
If one party does not accept, he doesn’t disclose whether the other party did. Surprisingly, he does not encourage and has never had a party try to negotiate off the recommendation. Either there’s a deal or there isn’t.
“The judge’s role is significantly different in a pretrial. Instead of the judge deciding the case, the judge on a certain level steps into the lawyer’s role,” Griffin said. “When one side is talking to you, you’re probing them or asking questions or even making arguments as to, perhaps, weaknesses in their case. The importance for the attorneys is to give the judge the ammunition for meeting with the other side.”
A lot of times lawyers are very reluctant to let their guard down at all.
“Someone will say, ‘I won’t go over 100 grand’ and I’ll say, ‘Yes you will.’”
“‘No, no, I’m telling you that’s it. This is written in stone,’” he said they tell him.
“I’ll say, ‘OK. If it was $101,000, would you do that?’”
“‘OK, so you would go over 100, so let’s talk about it …’”
“They do give you indications whether they want to or not,” Griffin said. “Hopefully, I’ve been listening and seeing what little signals they’ve been sending to try to come up with a number that they really will consider.”
His recommendation is his best thought on what the case could settle for.
“I always say to them, ‘I don’t know who the good card players are’ so I don’t know what they’re really trying to tell me. I’m always trying to figure that out, but if they can help me, if they need things to settle the case and can share that with me, maybe I can help them get it.”
“Let your client talk to the judge. Sometimes the clients say things you don’t want them to say — but don’t be afraid of that. Nothing said is admissible so they can’t really hurt their case. It’s confidential when they’re meeting with me.”
That’s tough for attorneys, he notes. Attorneys by nature want to control everything. It’s uncomfortable to watch your client get cross-examined, for example.
“One thing I like to say, and I used to say it as a lawyer to my client, is that litigation is like surgery. It’s very painful, it’s very expensive and here you’re paying the expenses. The outcome is uncertain. If you have to do it, do it. If you can avoid it, avoid it. Today’s your opportunity to avoid it.
“Listening to people say very bad things about you to 12 of your fellow citizens or to a judge is not easy. Sitting on the stand and getting cross-examined and limited to yes-or-no answers when you think the questions are so unfair is not pleasant. Even having them sit out in the courtroom while I’m meeting with the other side gives them a taste of what it’s like.”
Every mediator encourages the parties to open up. Griffin knows from his own time in practice that lawyer’s cases may have problems. He meets with the attorneys first and asks if there is anything they want him to know about their clients. “You can have clients who are very difficult to deal with. For example, I always say the five worst words that a client can say to an attorney — you remember that one? It isn’t, ‘I’m not going to pay you’ it’s, ‘Whose side are you on?’”
If they trust the judge a little bit and tell the judge, ‘Here’s what I need,’ or ‘Here’s what my client is about right now,’ it can help settle the case.”
Clients may be intimidated by the situation, have needs unrelated to the case, a need to get it over with, health problems, moving problems, employment problems.
There are other obstacles including confidentiality.
“People are settling and don’t want other people to know. It can be a confidential settlement. When you try the case, you lose that. Non-disparagement clauses. Don’t be bad rapping us after this. We have our customers. You are one of our salespeople. Don’t be bad rapping us. Noncompete may be important. It might be time payments. We come to an agreement on a number and all of a sudden we can’t pay it for two years. Now we’re back at square one. If the attorneys can identify the issues or concerns or needs, whatever word you want to use, that can be helpful. To be honest, the more issues the merrier. It’s harder to settle a case that has one issue, because there’s a winner or a loser.”
Sometimes, he notes, a private caucus with him isn’t enough and the parties need to face each other.
“I’ve had cases where they’ll explain intricate details to me that I can’t repeat to the other side.”
Another reason to meet in full conference is to air out emotional issues especially in situations where the parties knew each other or worked together for 10 or 15 years. Sometimes, he finds, the best thing to do is let the parties sit down alone, provided the lawyers suggest it.
“Generally, there isn’t insurance so the people who are present in the settlement conference not only are involved in the ultimate success of the case or competition, they’re the ones paying it and both sides are paying their attorneys, which frequently the legal fees can be as big a factor as the actual exposure.”
Outside of court, Griffin is proud that he ran two marathons as a self-described “pretty old guy.” He was a power forward on the St. Rita flyweight basketball team until he grew up too fast.
One case he remembers from his practice involved a psychiatric nurse who essentially stole the client’s proceeds from her husband’s life insurance policy. He got a judgment but she filed for bankruptcy. Never having done any bankruptcy, he tried hard to find a lawyer to handle it, couldn’t and ultimately handled the bankruptcy himself.
He “got laughed out of the bankruptcy court,” he said. But he prevailed in the district court and won in a landmark case before the 7th Circuit where the court set the standard for dischargability in Chapter 13 proceedings.
Did they ever collect any money? Just a little, but the case came early in his career and he took it “for principle” — a phrase he now has to deal with constantly from the lawyers before him.