Judge Harjani's Final Pretrial Order; Final Pretrial Order Procedures in Criminal Cases; Estimated Patent Case Schedule; Writing Effective Settlement Conference Letters by Hon. Sunil R. Harjani; The Five Don'ts of Settlement Conferences by Hon. Sunil R. Harjani; The Price of Admission by Hon. Sunil

=== Judge Harjani's Final Pretrial Order ===

JUDGE SUNIL R. HARJANI 219 South Dearborn Street Courtroom 1925 Chambers 1956 Chicago, IL 60604 (312) 435-3000 PREPARATION OF FINAL PRETRIAL ORDER FOR CIVIL CASES The parties shall jointly prepare and submit a Final Pretrial Order on the date set containing the following components, unless otherwise ordered by the Court. An original and two (2) copies of the Final Proposed Pretrial Order shall be delivered to chambers. Contents of the Pretrial Order The subjects discussed below should be addressed in separate, tabbed and numbered sections of the Pretrial Order. The Pretrial Order either should be placed in a three-hole binder or spiral bound on the left side of the document, with tabs on the right side. 1. Jurisdiction. A concise statement of the basis for federal subject matter jurisdiction, and if jurisdiction is disputed, the nature and basis of the dispute. 2. Trial Attorneys. A list of the attorneys trying the case that includes their business and cell phone numbers and email addresses. 3. Case Statement. A concise joint statement of the case that includes the nature of the case; the claims, counterclaims and cross-claims; and the defenses raised to those claims. In a jury case, this statement will be read to the jury during voir dire. 4. Relief Sought. An itemization of the damages and other relief sought. 5. Contested Issues. A concise, numbered list of the contested issues of fact and/or law. 6. Witnesses. A list of names and addresses of all witnesses, including experts: (a) who will be called; (b) who may be called; and (c) whose testimony will be presented by deposition or other prior testimony (indicating whether the presentation will be by transcript or video). A very brief description of the witness’s role in the case shall also be included. In a jury trial, this list will be read to the jury during voir dire. Any witness not listed in the Pretrial Order will be precluded from testifying absent a showing of good cause, except that each party reserves the right to call such rebuttal witnesses (who are not presently identifiable as rebuttal witnesses) as may be necessary. a. Objections. A statement of any objections to the calling of any witness, including expert witnesses. Objections not made in the Pretrial Order will be deemed waived absent a showing of good cause. If the objection is the subject of a motion in limine, the Pretrial Order may simply refer to the motion and need not repeat the grounds stated in the motion. b. Depositions and Other Prior Testimony. For witnesses who will be presented by deposition or other prior testimony, the Pretrial Order must include for each such witness a chart containing the following information: (a) the testimony that each side seeks to present, by page and line number; (b) a concise statement of objections to any testimony and the basis for the objections with appropriate citations to evidentiary rules or case law; and (c) a concise statement of the asserted basis of admissibility with appropriate citations to evidentiary rules or case law. Objections not made in the Pretrial Order will be deemed waived absent a showing of good cause. If the Court will be called upon to rule upon objections, a copy of the deposition is to be provided with the Pretrial Order. 7. Exhibits. A list of all exhibits a party may introduce at trial, as well as any demonstrative exhibits or evidence, identified by trial exhibit number, and a section that provides a brief description of each exhibit. Joint exhibits should be denominated “JX,” plaintiff’s exhibits, “PX,” and defendant’s exhibits, “DX.” Any exhibit not listed in the Pretrial Order will be excluded from evidence absent a showing of good cause. a. Objections. A statement of any objections to each exhibit. Objections not made in the Pretrial Order will be deemed waived absent a showing of good cause. The parties should follow a similar format for objections and asserted bases of admissibility to that outlined above for deposition or other prior testimony designations. The parties must provide the Court with two exhibit binders containing the objected-to deposition testimony and exhibits. 2 b. Exhibits to Be Displayed to Jury. If an exhibit is to be displayed to the jury, the party intending to display the exhibit must make sufficient copies for all jurors or must use an enlargement or projection of the exhibit. If you need assistance with understanding how to operate the courtroom display technology equipment, counsel must contact the Systems Department within the Clerk’s Office at least 2 weeks before trial. c. Final Exhibits for Trial. Two bench books of each party’s exhibits are to be delivered to the Court at or before the start of trial. 8. Type and Length of Trial. A statement of whether the trial will be a bench trial or jury trial, and a realistic estimate of the length of the trial. The Court holds “long trial days” that run from 8:30 a.m. to 5:00 p.m. and the attorneys will have a minimum of six hours on-the-record trial days. 9. Proposed Findings and Conclusions. For a bench trial, proposed findings of fact and conclusions of law. Ordinarily, Judge Harjani will direct the parties to file their proposed findings of fact with citations to the trial transcript and conclusions of law after the bench trial. However, Judge Harjani may request proposed findings of fact and conclusions of law prior to the conclusion of the bench trial. The parties shall confer about proposed findings of fact and conclusions of law as to which they agree and submit those to the Court. Each party also shall submit its separate proposed findings of fact and conclusions of law. Proposed findings of fact and conclusions of law should be filed on the docket and emailed to the Proposed Order Box as a Word version. 10. Proposed Voir Dire Questions. For a jury trial, the parties should propose any unique voir dire questions for the questionnaire. Judge Harjani often uses a written questionnaire as the initial basis for voir dire, which has the standard questions that most district judges use. Counsel will be given copies of the completed questionnaires before jury selection begins. Judge Harjani will also pose additional voir dire questions in open court that are not suitable for the questionnaire. The parties should assume that the “general” questions typically asked by judges during jury selection will be asked and should not duplicate them in the Final Pretrial Order. Rather, the parties should focus their attention on areas of questioning that are specific to the case. The parties should include any particular voir dire questions they want asked in the Pretrial Order. If any question proposed by an opposing party is objected to, the objection should be noted in the Pretrial Order. 11. Proposed Jury Instructions / Verdict Form. For a jury trial, proposed jury instructions are to be in Word and included both in the written Pretrial Order 3 and emailed to the Proposed Order Box. When there is a Seventh Circuit pattern jury instruction on point, that instruction should be used absent a good reason for not doing so. a. Agreed Instructions. The parties are directed to confer and agree upon jury instructions to the extent possible prior to the submission of the jury instructions to the Court. Agreed proposed instructions should be marked as such and shall be numbered consecutively. b. Disputed Instructions. Proposed instructions that are not agreed shall be numbered, shall identify the proponent of the instruction, and shall include supporting authority. Objections to any proposed instructions must be set forth in writing and shall include supporting authority. 12. Stipulations. A listing of any stipulations agreed to by the parties, including stipulations regarding the presentation or admissibility of evidence. 13. Settlement Status. A statement summarizing the current status of settlement negotiations and whether the parties believe a pretrial settlement conference would be productive. 14. Trial Briefs. Trial briefs are required as part of the Pretrial Order in jury and bench trials. Any trial briefs shall be limited to 10 pages without leave of court. Trial briefs are intended to provide full and complete disclosure of the parties’ respective theories of the case. Accordingly, each trial brief shall include the party’s theory of liability or defense, the party’s theory of damages or other relief in the event liability is established, and the party’s theory of any anticipated motion for judgment as a matter of law. The brief shall also include citations to authorities in support of each theory stated in the brief. Motions In Limine The Court will set a schedule for the filing of motions in limine when it sets dates for the filing of the Pretrial Order. These motions and responses should not be bound with the Pretrial Order. They should be filed separately on the docket. Two (2) courtesy copies of any motions in limine shall be delivered to chambers in accordance with the Local Rules. Judge Harjani discourages the filing of “boilerplate” motions in limine or motions that address matters not in dispute. Any motion in limine filed by a party must be accompanied by a statement that the party has conferred with the opposing party and has determined that the matter upon which a ruling is sought is actually in dispute. If the meet-and-confer process results in agreement that certain matters are inadmissible or admissible, that agreement should be memorialized in a stipulation to be provided to Judge Harjani in the Pretrial Order (see paragraph 12 above) or at the final pretrial conference. 4 Daily/Expedited Transcript and Real-Time Reporting Any requests for daily or other expedited transcripts and real-time reporting must be made at least seven (7) days prior to trial. Instructions for Compiling Final Pretrial Order Plaintiff’s counsel has the responsibility to prepare the initial draft of the Pretrial Order and must provide a draft to defendant’s counsel no later than twenty-one (21) days before the date the Pretrial Order is due. Defendant’s counsel must respond in writing to plaintiff’s draft by no later than fourteen (14) days before the Pretrial Order is due, including any objections, changes, and additions to plaintiff’s draft, as well as defendant’s portions of the draft Pretrial Order (e.g., defendant’s witness list, exhibit list, and objections to exhibits and deposition or other prior testimony listed by plaintiff). The parties must meet and confer by no later than seven (7) days before the Pretrial Order is due to discuss their respective drafts and to reach agreement to the extent possible. These dates may be varied only by written agreement of the parties or by order of the Court. Following the meet-and-confer process, it is the responsibility of plaintiff’s counsel, with full cooperation from defendant’s counsel, to assemble the Pretrial Order for submission. The Pretrial Order should be filed on the CM/ECF system with a cover page with the case caption and the title FINAL PRETRIAL ORDER. The cover document must: (a) recite that each of the foregoing categories of materials is included, (b) state that “This Order will control the course of trial and may not be amended except by consent of the parties, or by order of the Court to prevent manifest injustice,” and (c) provide spaces for the signature of counsel for each of the parties and the Court. Pretrial Conferences The Court will set a date for the final pretrial conference at least three weeks before trial. The purpose of this conference is to avoid surprises and to simplify the trial. At the conference, Judge Harjani will address pending motions in limine, objections to witnesses and exhibits, and contested jury instructions, and will discuss trial procedures and scheduling. Lead trial counsel fully prepared and with authority to discuss all aspects of the case must attend. The parties need not attend the pretrial conference unless settlement will be discussed at the conference. The parties, however, are welcome to attend the pretrial conference with their attorneys, if they wish to do so. Jury Selection The entire venire will enter the courtroom and be sworn in. Jurors will be seated in the jury box and in the gallery according to the random-order list. The Court, not the parties, will ask certain background questions of all jurors. Then the Court will ask follow-up questions 5 based on their completed juror questionnaires. After the Court’s questioning, the parties will have an opportunity to question jurors about their completed questionnaires. The Court will then go to sidebar to hear challenges for cause and rule on those challenges. The parties will next submit preemptory challenges in writing simultaneously (overlapping peremptory challenges count against both sides). Instructions for Trial Counsel Your compliance with the following requests will be appreciated: (i) (ii) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you. Contact the Systems Department within the Clerk’s Office at least two weeks before trial if you need assistance with understanding how to operate the courtroom display technology equipment. (iii) Court time may not be used for marking exhibits. This must be done in advance of the court session. (iv) (v) Please stand whenever you address the court. This includes the making of objections. (Counsel with physical disabilities will be excused from this requirement.) Please speak into the microphone whenever speaking on the record in court. You may move away during opening and closing arguments but you must speak loudly or use a portable microphone. (vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.) (vii) On direct examination, if you intend to question a witness about a group of documents, avoid delays by having all the documents given to the witness when you start the examination. (viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. If the matter is important and anticipated, raise the issue in the morning prior to the start of the trial. (ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion. 6 (x) You must request leave of court to approach a witness to show the witness an exhibit. (xi) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct. (xii) Counsel are not permitted to contact jurors after trial without permission of the Court. SO ORDERED. Dated: February 17, 2026 ______________________________ Sunil R. Harjani United States District Judge 7

=== Final Pretrial Order Procedures in Criminal Cases ===

JUDGE SUNIL R. HARJANI 219 South Dearborn Street Courtroom 1925 Chambers 1956 Chicago, IL 60604 (312) 435-3000 PREPARATION OF FINAL PRETRIAL ORDER FOR CRIMINAL CASES The parties shall jointly prepare and submit a Final Pretrial Order on the date set containing the following components, unless otherwise ordered by the Court. An original and two (2) copies of the Final Proposed Pretrial Order shall be delivered to chambers. Contents of the Pretrial Order The subjects discussed below should be addressed in separate, tabbed and numbered sections of the Pretrial Order. The Pretrial Order either should be placed in a three-hole binder or spiral-bound on the left side of the document, with tabs on the right side. 1. Trial Attorneys. A list of the attorneys trying the case that includes their business and cell phone numbers and email addresses. 2. Case Statement. A concise joint statement of the case that includes the nature of the case and the charges, followed by a statement that the defendant has pled not guilty. In a jury case, this statement will be read to the jury during voir dire. 3. Witnesses. A list of names and addresses of all witnesses, including experts: (a) who will be called; (b) who may be called; and (c) whose testimony will be presented by deposition or other prior testimony (indicating whether the presentation will be by transcript or video). A very brief description of the witness’s role in the case shall also be included. In a jury trial, the list of witness names will be read to the jury during voir dire. a. Objections. A statement of any objections to the calling of any witness, including expert witnesses. Objections not made in the Pretrial Order will be deemed waived absent a showing of good cause. If the objection is the subject of a motion in limine, the Pretrial Order may simply refer to the motion and need not repeat the grounds stated in the motion. b. Depositions and Other Prior Testimony. For witnesses who will be presented by deposition or other prior testimony, the Pretrial Order must include for each such witness a chart containing the following information: (a) the testimony that each side seeks to present, by page and line number; (b) a concise statement of objections to any testimony and the basis for the objections with appropriate citations to evidentiary rules or case law; and (c) a concise statement of the asserted basis of admissibility with appropriate citations to evidentiary rules or case law. Objections not made in the Pretrial Order will be deemed waived absent a showing of good cause. If the Court will be called upon to rule upon objections, a copy of the deposition is to be provided with the Pretrial Order. 4. Exhibits. A list of all exhibits a party may introduce at trial, as well as any demonstrative exhibits or evidence, identified by trial exhibit number, and a section that provides a brief description of each exhibit. Joint exhibits should be denominated “JX,” government exhibit, “GX,” and defendant’s exhibits, “DX.” Two bench books of each party’s exhibits are to be delivered to the Court at or before the start of the trial. Any substantial objection to an exhibit shall be filed as a motion in limine. 5. Type and Length of Trial. A statement of whether the trial will be a bench trial or jury trial, and a realistic estimate of the length of the trial. The Court holds “long trial days” that run from 8:30 a.m. to 5:00 p.m. and the attorneys will have a minimum of six hours on-the-record trial days. 6. Proposed Voir Dire Questions. For a jury trial, the parties should propose any unique voir dire questions for the questionnaire. Judge Harjani often uses a written questionnaire as the initial basis for voir dire, which has the standard questions that most district judges use. Counsel will be given copies of the final completed questionnaires before jury selection begins. Judge Harjani will also pose additional voir dire questions in open court that are not suitable for the questionnaire. The parties should assume that the “general” questions typically asked by judges during jury selection will be asked and should not duplicate them in the Final Pretrial Order. Rather, the parties should focus their attention on areas of questioning that are specific to the case. The parties should include any particular voir dire questions they want asked in the Pretrial 2 Order. If any question proposed by an opposing party is objected to, the objection should be noted in the Pretrial Order. 7. Proposed Jury Instructions / Verdict Form. For a jury trial, proposed jury instructions are to be in Word and included both in the written Pretrial Order and emailed to the Proposed Order Box. When there is a Seventh Circuit pattern jury instruction on point, that instruction should be used absent a good reason for not doing so. a. Agreed Instructions. The parties are directed to confer and agree upon jury instructions to the extent possible prior to the submission of the jury instructions to the Court. Agreed proposed instructions should be marked as such and shall be numbered consecutively. b. Disputed Instructions. Proposed instructions that are not agreed shall be numbered, shall identify the proponent of the instruction, and shall include supporting authority. Objections to any proposed instructions must be set forth in writing and shall include supporting authority. 8. Stipulations. A listing of any stipulations agreed to by the parties, including stipulations regarding the presentation or admissibility of evidence. Motions In Limine The Court will set a schedule for the filing of motions in limine when it sets dates for the filing of the Pretrial Order. These motions and responses should not be bound with the Pretrial Order. They should be filed separately on the CM/ECF system. Two (2) courtesy copies of any motions in limine shall be delivered to chambers in accordance with the Local Rules. Judge Harjani discourages the filing of “boilerplate” motions in limine or motions that address matters not in dispute. Any motion in limine filed by a party must be accompanied by a statement that the party has conferred with the opposing party and has determined that the matter upon which a ruling is sought is actually in dispute. If the meet-and-confer process results in agreement that certain matters are inadmissible or admissible, that agreement should be memorialized in a stipulation to be provided to Judge Harjani in the Pretrial Order or at the final pretrial conference. The motions in limine must also be briefed as thoroughly as possible, which means they allow the Court to rule without the need for argument. Daily/Expedited Transcript and Real-Time Reporting Any requests for daily or other expedited transcripts and real-time reporting must be made at least seven (7) days prior to trial. 3 Instructions for Compiling Final Pretrial Order The government has the responsibility to prepare the initial draft of the Pretrial Order and must provide a draft to defendant’s counsel no later than twenty-one (21) days before the date the Pretrial Order is due. Defendant’s counsel must respond in writing to the government’s draft by no later than fourteen (14) days before the Pretrial Order is due, including any objections, changes, and additions to the draft, as well as defendant’s portions of the draft Pretrial Order (e.g., defendant’s witness list, exhibit list, and objections to exhibits and deposition or other prior testimony). The parties must meet and confer by no later than seven (7) days before the Pretrial Order is due to discuss their respective drafts and to reach agreement to the extent possible. These dates may be varied only by written agreement of the parties or by order of the Court. Following the meet-and-confer process, it is the responsibility of government counsel, with full cooperation from defendant’s counsel, to assemble the Pretrial Order for submission. The Pretrial Order should be filed on the CM/ECF system with a cover page with the case caption and the title FINAL PRETRIAL ORDER. The cover document must: (a) recite that each of the foregoing categories of materials is included, (b) state that “This Order will control the course of trial and may not be amended except by consent of the parties, or by order of the Court to prevent manifest injustice,” and (c) provide spaces for the signature of counsel for each of the parties and the Court. Pretrial Conferences The Court will set a date for the final pretrial conference before trial. The purpose of this conference is to avoid surprises and to simplify the trial. At the conference, Judge Harjani will rule on pending motions in limine, objections to witnesses and exhibits, and discuss contested jury instructions, and will also cover his trial procedures and scheduling. Lead trial counsel fully prepared and with authority to discuss all aspects of the case must attend. The defendant must also be present. Jury Selection The entire venire will enter the courtroom and be sworn in. Jurors will be seated in the jury box and in the gallery according to the random-order list. The Court, not the parties, will ask certain background questions of all jurors. Then the Court will ask follow-up questions based on their completed juror questionnaires. After the Court’s questioning, the parties will have an opportunity to question jurors about their completed questionnaires. The Court will then go to sidebar to hear challenges for cause and rule on those challenges. The parties will next submit preemptory challenges in writing simultaneously (overlapping peremptory challenges count against both sides). The government has 6 peremptory challenges and the defendant has 10 peremptory challenges pursuant to Federal Rule of Criminal Procedure 24, unless otherwise requested and approved by the Court. The first 12 non-struck jurors 4 on the random-order jury list will comprise the jury. Then the parties will exercise their peremptory (or peremptories, if more than one) challenge for the alternate (or alternates, if more than one). Instructions for Trial Counsel Your compliance with the following requests will be appreciated: (i) (ii) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you. Contact the Systems Department within the Clerk’s Office at least two weeks before trial if you need assistance with understanding how to operate the courtroom display technology equipment. (iii) Court time may not be used for marking exhibits. This must be done in advance of the court session. (iv) (v) Please stand whenever you address the court. This includes the making of objections. (Counsel with physical disabilities will be excused from this requirement.) Please speak into the microphone whenever speaking on the record in court. You may move away during opening and closing arguments but you must speak loudly or use a portable microphone. (vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.) (vii) On direct examination, if you intend to question a witness about a group of documents, avoid delays by having all the documents given to the witness when you start the examination. (viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. If the matter is important and anticipated, raise the issue in the morning prior to the start of the trial. (ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion. (x) You must request leave of court to approach a witness to show the witness an exhibit. 5 (xi) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct. (xii) Counsel are not permitted to contact jurors after trial without permission of the Court. SO ORDERED. ______________________________ Sunil R. Harjani United States District Judge Dated: February 9, 2026 6

=== Estimated Patent Case Schedule ===

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ESTIMATED PATENT CASE SCHEDULE Event Scheduled Time Service of Complaint Answer or Other Response to Complaint (FRCP 4) Joint Scheduling Order (LPR 1.2) 7 days After Rule 26(f) conference Initial Disclosures of Both Parties (with no patent infringement counter-claim) / Commencement of Fact Discovery (LPR 2.1, LPR 1.3) 14 days After Answer or other Responsive Pleading Initial Infringement Contentions (LPR 2.2) 14 days After Initial Disclosures Initial Non-Infringement, Unenforceability and Invalidity Contentions (LPR 2.3) 14 days After Initial Infringement Contentions Initial Response To Non-Infringement and Invalidity Contentions (LPR 2.5) 14 days After Initial Non-infringement and Invalidity Contentions Final Infringement, Unenforceability and Invalidity Contentions (LPR 3.1(a)(2 21 weeks After Initial Infringement Contentions Final Non-infringement, Enforceability and Validity Contentions (LPR 3.2) 28 days After Final Infringement Contentions Exchange of Claim Terms Needing Construction and Proposed Construction (LPR 4.1(a 14 days After Final Non-infringement Contentions Opening Claim Construction Brief (LPR 4.2(a 35 days After Exchange of Claims Terms Total Time After Complaint 7 weeks (assumes 30-day extension) 9 weeks 11 weeks 13 weeks 15 weeks 32 weeks 36 weeks 38 weeks 43 weeks UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ESTIMATED PATENT CASE SCHEDULE Event Scheduled Time Total Time After Complaint Responsive Claim Construction Brief (LPR 4.2(c 28 days After Opening Claim Construction Brief Reply Claim Construction Brief (LPR 4.2(d 14 days After Responsive Claim Construction Briefs Joint Claim Construction Chart (LPR 4.2(f 7 days After Reply Claim Construction Brief Claim Construction Hearing (LPR 4.3) 28 days After Reply Claim Construction Brief Claim Construction Ruling Approximately six weeks Close of Fact Discovery (LPR 1.3) 42 days After Claim Construction Ruling Expert Reports of Parties with Burden of Proof (LPR 5.1(b 28 days After Close of Fact Discovery Rebuttal Expert Reports (LPR 5.1(c 28 days After Initial Expert Reports Completion of Expert Witness Depositions (LPR 5.2) 28 days After Rebuttal Expert Reports Final Day for Filing Dispositive Motions (LPR 6.1) 28 days After Close of Expert Discovery 47 weeks 49 weeks 50 weeks 54 weeks 60 weeks 66 weeks 70 weeks 74 weeks 78 weeks 82 weeks

=== The Price of Admission by Hon. Sunil R. Harjani ===

Commentary The Price of Admission By Hon. Sunil R. Harjani Hon. Sunil R. Harjani is a U.S. magistrate judge in the Northern District of Illinois. He presides over pretrial matters in civil and criminal cases and also conducts multiple settlement conferences each week. Judge Harjani is also a trained and certified mediator. ©2021 Sunil R. Harjani. All rights reserved. The views and opinions expressed in this column are those of the author and do not necessarily reflect the views or positions of any entities he represents. As a federal magistrate judge, I conduct multiple settlement conferences each week. Over time, I have learned that there is a perception among lawyers that an opening settlement offer should be as aggressive as possible to demonstrate to the opposing side a certain strength and resolve in their case. Thus, I will often get an opening offer that is way out of range, or an opening counteroffer that values the case at almost nothing. The intended idea, of course, is to demonstrate that the case is extremely valuable or worthless, depending on whether counsel represents the plaintiff or defendant. Attorneys often believe that an aggressive opening pos- ture will set the tone for the conference and thus result in a more favorable settlement for the client. In other circumstances, I have learned that lawyers make wildly out-of-range opening offers or responses because they do not trust the other side. In those cases, there is a fear that a reasonable settle- ment offer will result in an unreasonable response, and thus place the first party in a disadvantageous situation. Conversely, it is easy for an unreasonable counteroffer to be issued following an unreasonable opening offer—resulting in both opening positions being out of range. Hence, largely for these two rea- sons, I often see cases that should start at reasonable settlement ranges begin with outrageously out-of- range offers and responses. From my perspective as a judge-mediator, I see almost no value in making extremely high or low offers in mediations. Rather than demonstrate strength to the judge-mediator, it demonstrates unreasonableness and immediately diminishes credibility. It shows the judge-mediator that the attorney has not properly valued the case by assessing the evidence, costs of liti- gation, time to resolution, and uncertainties surround- ing anticipated dispositive motions or a jury trial. It also shows that counsel has not valued the case with the clients’ real interest in mind, which may be ending a dispute with a current employer, needing funds to support living or business expenses, or moving past an emotionally difficult set of circumstances alleged in the lawsuit. What really happens when one side makes an unreasonable offer or response? It actually puts the other side’s guard up. An unreasonable opening offer from a plaintiff often results in an equally unreason- able response from a defendant. An unreasonable response from the defendant causes the plaintiff to feel like their claim is not being taken seriously. With both the judge-mediator and opposing counsel, it fails to develop credibility and trust, show an open mindset, and demonstrate good faith—all traits that are needed for a successful settlement conference. So, what do I do when I get wildly unrealistic offers and responses? The easy option is to cancel the settlement confer- ence. Judges often have multiple settlement confer- ences each week, and it is certainly efficient to focus on those cases where the parties have demonstrated a true interest in settlement with their reasonable offers and responses. Another option is to require each party to revise their offers based on the judge’s feedback, which may result in some decent movement, but more often results in a minuscule new move by each party. Still another option is to hold the settlement conference despite these opening numbers and let the negotiations play out. That, of course, is a tactic that many judges use, and they let the chips fall where they may at the conference. A fourth option, and one that I sometimes use, is called the price of admission strategy. Price of Admission Strategy The price of admission strategy consists of processes and conditions that I deploy before setting a settle- ment conference. If my ultimate conditions are not met, I do not hold a settlement conference with the parties. After receiving the parties’ settlement letters, with the wildly out-of-range offers and responses, I sched- ule a phone call where I have both joint and private sessions with counsel for each side. In the private ses- sions, I ask a lot of questions about their (1) statement of facts; (2) responses to factual and legal challenges identified in their opponent’s settlement letter; (3) itemization of damages; (4) methodology in reaching an opening settlement number; and (5) mindset and willingness to negotiate and compromise. • THE FEDERAL LAWYER • January/February 2022 18 Also, in the private sessions, I ask counsel to confide in me and provide me a better sense of how the negotiations would proceed in a conference. For example, if the opening demand was $2 million and the response offer was $20,000, I would pose a hypothetical to the plaintiff ’s counsel as follows: “Can you envision a world in which your client settles in the six figures?” In other words, I am asking counsel if there is any possibility, that her client could live with a settlement between $100,000 and $999,999. To the defendant’s counsel with the $20,000 offer, I might ask the same question, “Could you see a world in which your client settles in the seven figures?” I would then push further, depending on the answer, and ask about a six-figure settlement. Another hypothetical I would ask plaintiff ’s counsel is the follow- ing: “If I told you that no matter what I do, I could not get the other side to offer above $1 million, would you suggest going forward with the conference or canceling?” I would then ask a similar question to the defendant using different numbers. I employ the above process to obtain a better sense of the true ne- gotiating range and the party’s resolve to settle the case. I ask counsel the specific questions above in order to come to my own conclusions about what a reasonable settlement range should look like. I also ask hypotheticals to counsel to obtain intelligence about where they see the negotiations really heading, given that their opening offers were driven by bad strategy rather than a true settlement value of the case. To be clear, I do not ask for bottom-line numbers, and I also do not believe that any counsel or client should come to a settlement con- ference with a bottom line—those are pre-conference formulations without the input of the neutral judge-mediator and without any consideration of how the negotiations will play out. This is the reason I ask hypotheticals and phrase the question with broad terms that al- low counsel to continue to advocate for the best result for their client while keeping an open mind as to where the negotiations might end. With these questions in a private session, I expect truthful respons- es. I warn counsel that if they can’t be frank with me, they may do a disservice to their client because their client may not get a settlement conference with the court. And I consistently promise that I will keep their confidences and that my credibility and effectiveness as a mediator rests, in part, on my ability to keep those confidences. Prior to or after those private sessions, I also conduct research on jury verdicts and reported settlement figures for similar cases to achieve a better sense of the settlement value of a case. In addition, I have my own set of experiences that inform settlement values from past cases that my colleagues or I have mediated and settled in our district. Those factors also help me determine a more reasonable range for settlement discussions. Once I have probed and poked both sides for information and processed my own research, I formulate a settlement negotiating range. In a joint session on the phone with the lawyers, I present the price of admission to a settlement conference with me. In the earlier example, I would inform counsel that in order to go forward with a settlement conference, the plaintiff has to agree to start the negotia- tion at $700,000 and the defendant has to agree to start at $200,000. This means that those numbers will be the new preconference open- ing numbers and that I expect the parties to negotiate from those starting points and continue to move numbers from there during the conference. I also warn counsel that the plaintiff should not expect to settle at $690,000 and the defendant should not expect to settle at $210,000. Rather, each side should have room to move at the confer- ence. I emphasize that they should not look at the midpoint between $700,000 and $200,000 as the target settlement number because there is much work that the parties and I need to do at a conference, including further discussion of the challenges in the case, the cost of litigation, the time and work left before the conclusion of the litigation, other needs and interests of the parties, and nonmonetary terms in settlement, in order to properly assess a fair and reasonable settlement value of the case. In explaining the price of admission to a settlement conference, I explain my rationale for the range to both sides without revealing any information that was provided to me in confidence. I often tell counsel that, as a neutral with no stake in the conflict, I have provid- ed an honest and balanced assessment of the case and its settlement value, which is partly why counsel often seek out a magistrate judge for a settlement conference in the first place. I also inform counsel that, if they wish, I am happy to have another call with their clients to explain my rationale on the price of admission. As shown in the above example, I try not to set the range too narrow or too broad. Too broad of a range does not achieve the goal of this process, which is to get the parties into a realistic negotiating zone, and essentially provides too big a gap to make any significant progress at a settlement conference. If the range is too narrow, I run the risk of scaring away one side as well as hampering counsel’s ability to negotiate a settlement and manage her client. So, I strive to find a range somewhere between those two extremes. Note, I also do not simply formulate a range around the midpoint between the two initial opening offers (which, in my example, would center a range around a $1.01 million midpoint [$2,000,000 + $20,000)/2]). That would be a disservice to the parties unless it was justified by the different criteria that I considered, as described above. To ensure neither side is prejudiced, I ask each side to send me a private email, without copying opposing counsel, letting me know if they agree to my range. I tell each counsel that I will only reveal their responses if I receive affirmative answers from both sides. If one side declines, I do not reveal any information and simply state on a docket entry that the parties have not unanimously agreed to the conditions for having a settlement conference with the court. In other words, the price of admission has not been satisfied. This “blind” process has the advantage of ensuring that one side does not give up their prior open- ing position without the other side doing the same. I also expressly in- form counsel that my range is not up for negotiation and they cannot propose new ranges to me. I simply want a “yes” or a “no” response, after consulting with their client, usually within one week. Finally, informing the parties that the range is the price of admission for a conference with the court requires the parties to start taking a hard look in the mirror. No longer is the settlement conference a “let’s see what happens” event. Nor does it allow the conference to become a series of small moves coupled with the usual venting about the other side’s unreasonable position. Rather, counsel and their client now have to commit to a serious settlement process and ask themselves if they really want to resolve the case without further litigation. If they decline the range, they will no longer have a judge-mediator to assist with their negotiations, making a future settlement even more unlikely. What Is the Result? If I have asked the right questions and processed the information cor- rectly, I have confidence that I have reached the appropriate range January/February 2022 • THE FEDERAL LAWYER • 19 and will get two affirmative responses. Two affirmative responses have now substantially increased the chances of reaching a settle- ment and narrowed an unreasonable preconference gap as follows: Plaintiff Defendant Gap Initial Offers $2,000,000 $20,000 $1,980,000 New “Price of Admission” Offers $700,000 $200,000 $500,000 In my example, the gap has narrowed from $1.98 million to $500,000. Beginning negotiations with this range set prior to a conference is substantial progress and saves an enormous amount of time at a formal settlement conference. I have also firmly clarified that any settlement reached at a conference will be a six-figure settle- ment. The odds for reaching a settlement are now much higher. If I get one declination, then there is no settlement conference and the parties go back to litigation. I realize that there is a certain momentum that can occur in negotiations and that by receiving a declination from at least one party, I have given up the option, as lawyers like to say, to use my “magic” to make something happen at a conference. In response, and in jest, I generally reply that my magical powers, if any, are limited and that the real magic will only happen within the price of admission range. On a more serious note, a declination from one or both parties tells me that the odds of settlement at a conference are very low and that I have saved the parties (and myself ) the time and cost of proceeding with a lengthy conference that will likely not result in a settlement. Certainly, there is some value that comes with an in- depth discussion of the case with the judge-mediator at a conference, as well as with the direct mediator-client conversations that occur at a conference. I recognize that, even if a conference is unsuccessful, those conversations can pave the groundwork for the parties to reach a settlement on their own or a successful settlement conference in the future. Thus, there are times when I opt not to deploy the “price of admission” strategy. However, I have found that it is a useful tool in the right case, where its benefits outweigh its drawbacks. I also find that, in the vast majority of cases where I do employ the strategy, the price of admission is accepted by both parties, and a settlement conference proceeds that results in a resolution of the litigation. Finally, I have also observed that, despite the assumption among counsel that a settlement will likely be at the midpoint of the new range, I have successfully settled cases materially higher and lower than the midpoint of the range. Conclusion Effective mediators have multiple tools in their toolbox and know when to correctly employ the right one to facilitate settlement. As a judge-mediator in a particularly difficult settlement conference, I often run down my mental list of different tools in my possession to break impasse or further promote movement by the parties. I recognize that many of the techniques I identified above are used by mediators standing alone or in some combination at a settlement conference. But using the combination of these techniques before the settlement conference may be a helpful tool to add to a mediator’s repertoire. In the right circumstances, deploying a price of admission strategy can promote early and significant movement from the parties and lead to a more productive and efficient settlement conference.  CALL FOR NOMINATIONS TO THE FBA ISSUES AGENDA FBA members —as well as chapters, sections, and divisions—are invited to nominate issues for inclusion in the FBA Government Relations Issues Agenda for 2022–2023. The deadline for all agenda nominations is Friday, March 25, 2022. FOR FULL DETAILS, PLEASE VISIT www.fedbar.org/government-relations/policy-priorities • THE FEDERAL LAWYER • January/February 2022 20