Financial-services firm Edward Jones has been ranked No. 8 on Fortune magazine's "100 Best Companies to Work For 2013" list in its 14th appearance on the prestigious list, according to David Gottlieb of Pepper Pike.
Edward Jones' 14 Fortune rankings also include top 10 finishes for 10 years and consecutive No. 1 rankings in 2002 and 2003 and consecutive No. 2 rankings in 2009 and 2010.
Currently, Edward Jones has 4,630 positions available throughout the country, mostly for financial adviser and branch office administrator. Each Edward Jones branch office includes one financial adviser and one branch office administrator who work one-on-one with clients in the communities where those clients live.
To pick the 100 Best Companies to Work For, Fortune partners with the Great Place to Work Institute to conduct the most extensive employee survey in corporate America. Two-thirds of a company's score is based on the results of the institute's Trust Index survey, which is sent to a random sample of employees from each company. The survey asks questions related to their attitudes about management's credibility, job satisfaction, and camaraderie.
The other third of the scoring is based on the company's responses to the institute's Culture Audit, which includes detailed questions about pay and benefit programs and a series of open-ended questions about hiring practices, internal communications, training, recognition programs and diversity efforts.
Edward Jones provides financial services for individual investors in the United States and, through its affiliate, in Canada. The firm's 12,000-plus financial advisers work directly with nearly 7 million clients to understand their personal goals.
In January 2013, for the 14th year, Edward Jones was named one of the best companies to work for by Fortune Mmagazine in its annual listing. The firm ranked No. 8 overall. These 14 rankings include 10 top-10 finishes, consecutive No. 1 rankings in 2002 and 2003, and consecutive No. 2 rankings in 2009 and 2010. Fortune and Time Inc. are not affiliated with and do not endorse products or services of Edward Jones.
All you need to do is look around to realize that the world is changing at a pace faster than anyone could have imagined. Every day, competition increases and the rules of engagement are rewritten. Keeping up with the Joneses is no longer enough to ensure survival.
Those manufacturers that understand how to remain in a state of constant adaptation have learned that this may be the only true key to thriving in the new economic realities of the global economy.
In the links below, we highlight 17 manufacturers that have taken steps to get ahead of change and forge their own paths. These award winners, honorable mentions and panelists for the 2013 Evolution of Manufacturing Conference, presented by Cuyahoga Community College, are truly setting the pace for others in this region. And we even identified a handful of companies that were engaged in initiatives “of note” to tell you about.
The conference is designed to recognize and showcase manufacturers and technology companies that have adapted to competition in a global economy through improved operations, new technologies, products or services. The 2013 program focuses on the continued evolution to advanced manufacturing with a focus on breakthrough concepts, transforming old-line manufacturers into high-tech manufacturers and what it takes to remain competitive and relevant in a new manufacturing age.
This year marks the 14th year of this annual event. This year’s honorees are culled from an extensive nomination and selection process which began in early fall and ended in early December.
Congratulations to the honorees and honorable mentions.
Click the links below to read the individual profiles for all of this year's honorees.
2013 Evolution of Manufacturing - Panalists
Tom Salpietra, president and COO, EYE Lighting International
Eric Lofquist, president and CEO, Magnus International Group
Suzy Remer, owner and CEO, Midwest Box Co.
2013 Evolution of Manufacturing - Winners
- ArtiFlex Manufacturing LLC
- R.W. Beckett Corp.
- H.C. Starck Inc.
- RBB Systems
- Saint-Gobain Performance Plastics
- Superior Products LLC
- Visual Marking Systems Inc.
- Voss Industries Inc.
2013 Evolution of Manufacturing - Honorable Mentions
2013 Evolution of Manufacturing - Manufactures "Of Note"
2013 Evolution of Manufacturing - Sponsors
Pillar Awards Nonprofit Board Executive of the Year Finalist
immediate past chairman
Columbus College of Art & Design
www.ccad.edu | (614) 224-9101
Michael Fiorile is a big thinker and persuaded the Columbus College of Art & Design’s entire board and senior leadership to think big, too. He is a man who is not satisfied by doing just “good enough.” He leads to achieve more and exceed past expectations.
Fiorile has devoted almost nine years of service to the CCAD board of trustees. He was elected to the board in November 2003. He served as board vice chair from
2008 to 2010 and as board chair from 2010 to 2012. He served on the board’s executive and governance committees from 2008 to 2012 and served on the executive committee until this year.
His most recent appointment expired in June 2012, but he agreed to serve one additional year as an ex officio member.
Throughout Fiorile’s board service, he has been tremendously generous himself, as well as assisting with corporate gifts and opening doors to additional private donors. The personal philanthropy of Fiorile and his wife, Karen, has placed them in the top tier of CCAD donors, and his advocacy on the college’s behalf has played an important role in securing leadership gifts.
In his final year as board chair, he was instrumental in increasing participation in board giving from 74 to 100 percent and increasing the average board gift by more than 200 percent.
In addition, the board and senior leadership alike appreciated how Fiorile kept the board conversation at the strategic level — avoiding micromanagement while keeping everyone’s eyes on collective goals.
In today’s regulatory environment, banks are no longer lending based on collateral; they are focusing more on business history, the owners, their future plans and how they’ll repay the loan.
“A business plan is an excellent way to tell bankers about the story behind the numbers and let them know you have a good handle on the future of your business,” says Betty Uribe, executive vice president for California Bank & Trust.
Smart Business spoke with Uribe about how to develop a business plan to increase your chances of obtaining a business loan.
Why are business plans important?
When presenting a loan package to a lender, an organized, well-thought-out business plan can make the difference between getting and not getting the loan.
A business plan will show the lender if the business has a chance of making a profit and in what time frame. It also provides a well-thought-out estimate of how much the business needs to grow and defines the market, customers and the percentage of the market the business plans to reach, providing a clear revenue estimate. Importantly, a business plan can convince the lender to fund your business and show them potential issues and how they’ll be addressed.
What are the steps involved in creating a good business plan?
Start with an outline and fill in the blanks as you learn more about the process. Your plan should be only as big as necessary for your firm to run smoothly. In fact, the outline alone may suffice, particularly if you are not submitting the plan in a package to obtain financing.
Many seasoned entrepreneurs calculate a break-even analysis to predict future viability in their respective fields. This is a formula based on the relationship between revenue, fixed costs, variable costs and profit. The analysis can show you how much money you must bring in to stay solvent.
Another preliminary tool is a feasibility plan, a basic document that features a summary, mission statement, market analysis and required success factors. It also might include an initial cost analysis addressing pricing and potential expenses. This can help you determine whether starting a business can work for you.
What resources are available to help?
An abundance of user-friendly business planning software is available that is designed to help strategize, sort and calculate related financial data.
Also, agencies like the Small Business Administration and SCORE, the Service Corp of Retired Executives, offer detailed information on developing a solid plan.
How do you get started?
Most experts outline 10 key components for a basic business plan. Key components include:
• Cover sheet
• Table of contents
• Executive summary
• Company description
• Product or service description
• Market analysis
• Strategy and implementation
• Management team
• Financial analysis
What should a business owner do with the business plan once it’s written?
Start by recording overall business or long-term goals on a spreadsheet, setting the bar high enough to grow. Make sure your goals are specific, measurable, attainable, relevant and time-bound (SMART). They must be easily identified, quantified and understood by you and your management team or you won’t know when you reach them. Also, set quarterly, monthly, weekly and daily objectives, then record your progress but don’t share or discuss goals with negative individuals who might impede progress. Lastly, keep asking yourself, ‘Does this decision take me closer to my goal?’
Growing a business takes commitment and systematic planning. Educate yourself. The more you learn about your industry, competitors, finances and time management, the greater your chances of success.
Betty Uribe is executive vice president at California Bank & Trust.
For a full scope of tools and information through to help businesses get started, visit www.calbanktrust.com/team. Another valuable source of information for business owners is at www.calbank trust.sbresources.com.
Insights Banking & Finance is brought to you by California Bank & Trust
The employees at Ashton Staffing Inc. regard every vacant position presented to them as an opportunity to bring the right people together. Headed by President and CEO Melissa Hulsey, Ashton has a customer service philosophy that instructs its associates to treat every job as if they were placing their best friend at their parents’ company.
Ashton employees often tell potential clients that their firm will probably not be the cheapest staffing option they will find and that if they are shopping for price only, Ashton is not the service they should partner with.
Ashton’s commitment to quality is demonstrated by the many professional certifications it holds. One of the most important is the Workers’ Compensation Risk Certification. The requirements for obtaining WRC include having strict application and screening protocols, conducting mandatory drug and background checks for all associates, and allowing a third party to audit all employee files for compliance once a year. A minimum score of 85 percent must be achieved to obtain and maintain the certification.
Customer retention is important to Ashton, and one way the company rewards its customers is by contributing to things that are important to those clients: sponsoring baseball teams, contributing prizes to special events, making charitable donations in their name. In so doing, Ashton has retained customers well. The company has many clients with more than 10 years’ tenure.
“For more than 10 years, Ashton Staffing has been the first choice for our staffing needs,” says David Agan, senior accounting and finance manager with KCMA Corp. in Kennesaw, Ga. “Their courteous professionals are attentive and always provide the proper person to meet our requirements. No matter what the opening, Ashton has been able to assist us with qualified candidates. We have enjoyed working with Ashton and have been very pleased with the results.”
How to reach: Ashton Staffing Inc., (770) 419-1776 or www.ashtonstaffing.com
Putting it succinctly, Junior Achievement’s mission is to help give students — who are inspired to be the young entrepreneurs of tomorrow — a taste of the business world. Since 1919, JA has been educating students about entrepreneurship with passion and integrity. It is the world’s largest organization devoted to that purpose.
One of the keys to JA’s success is the hands-on programs that help prepare young people to operate their own business. Many alumni of the program have cited their experience in JA as the foundation for their interest in being self-employed.
For instance, an inductee into a local chapter’s Hall of Fame recalled that when he was 13, he wanted to be an astronomer. Then, with five friends, he got into Junior Achievement and created a little company to market a useful product.
“We made money in the end,” he says. “After three or four months, we distributed $40 to each person of the company. Forty bucks doesn’t sound a lot today, but that was in 1955. At any rate, I decided, ‘Hey, I’d better go into business because I can’t make any money as an astronomer.’ That’s when I decided to go into business.”
Today, he owns a multimillion-dollar successful company.
JA Worldwide reaches more than 9 million students each year in 380,000 classrooms as well as after-school sites. There are 330,000 classroom volunteers globally who come from a wide range of backgrounds: retirees, businesspeople, college students and parents.
Local chapters each year honor distinguished business leaders who have acted as role models for students.
This year’s honorees for Junior Achievement of Central Ohio include Jim Budros, chairman of the board of Budros, Ruhlin & Roe Inc., the largest independent wealth management firm in central Ohio; Chuck Kegler, director with Kegler Brown Hill & Ritter LPA and a member of the firm since 1968; and Dwight Smith, founder and CEO of Sophisticated Systems Inc., a business technology partner in the Columbus region, and co-founder with his wife Reneé of the Thanks Be to God Foundation to support entrepreneurship and children worldwide.
They join the more than 80 business leaders inducted into the Junior Achievement of Central Ohio Hall of Fame in the past 25 years who give inspiration and purpose to young people to succeed in a global economy.
As companies grow, the demands on human resources departments also increase. To satisfy demands, employers have to be aware of the advances in self-service technology in HR that can increase productivity and create real cost savings.
HR departments can see tremendous benefits from technological innovations such as online HR/Benefits administration.
“Online automated HR/Benefits administration is attractive to companies with a sizable work force — generally 200 or more employees — because at this size, HR departments can become bogged down with daily administrative activities,” says John Galley, president of EBenefits Solutions, which is part of the UPMC Insurance Services Division. “Automation of these activities via the Web can eliminate these daily tasks for HR departments so that they can focus more of their time and energy on strategic initiatives that have a greater business impact. Online HR/Benefits administration also saves companies money, while increasing efficiency and security.”
Smart Business spoke with Galley about the benefits of online HR/Benefits administration and why it matters to employers.
Why would an employer want to make use of online HR/Benefits administration?
For many companies, the HR function has become more complex, difficult and time consuming. Oftentimes, more strategic initiatives can be squeezed out by the daily demands and volumes of administrative issues that must be addressed because they affect the work force every day. Fortunately, solutions are available.
The advantages of online HR/Benefits administration to an employer are many. Massive amounts of paperwork associated with benefits and payroll can overwhelm an HR department. There is a need to handle a number of documents that need to be filled out, signed, dated, reviewed, entered into various internal and external systems, such as carrier databases and the employer’s payroll/HRIS (Human Resource Information System) platform, and then filed. But online HR/Benefits administration can automate much of that process for employers.
Online HR/Benefits administration frees staff from duplicate paperwork, prevents errors and places all employees’ files in the same system, making it easier to access and retrieve. Other databases, such as a carrier system or payroll/HRIS platform can then be securely updated in an automated fashion via an electronic exchange.
Online HR/Benefits administration can also include a host of special features, such as embedded communications tools that allow HR departments to customize messages to various employee populations. The most advanced technologies do much more than handle open enrollment — they handle new hires, life events such as marriages, birth of a child, divorce, etc., as well as employment events such as a promotion or a move from part-time to full-time employment. Each of these has benefits and other HR implications that may be automated by a single solution.
And, because HR/Benefits administration virtually eliminates mailing costs and reduces time and other third-party related costs from operations, most companies realize a return on investment of 200 to 300 percent in the first year. In short, employers can receive better service at lower costs.
What advantages are there for employers with an online HR/Benefits system in place?
Most employers are thinking about strategies to help advance their work force so they are better equipped to handle change and move more swiftly. What is their communications strategy? What is their portal strategy? How can they move wellness initiatives forward to provide meaningful impact on medical trends and other lost productivity costs?
An online HR/Benefits system can provide answers to these key questions — the most advanced and state-of-the-art technologies in the market can create an integrated and seamless experience for employees, one that allows them to easily navigate a single system to accomplish their daily HR/Benefit activities.
These technologies also provide a gateway into other platforms such that wellness, absence, and other key initiatives can be easily and seamlessly managed through the same integrated portal. Because employees could perform all of these tasks without contacting HR or leaving their desks, this saves time for employees and HR staff, thus increasing productivity for the employer.
The right online HR/Benefits system ensures greater security and privacy of information for employees. Electronic exchanges are secure and data is protected via various levels of security. For example, HR administrator access can be limited to HR administrators only, and the information they have access to can be further limited by role, department and location.
What strategic advantages can an employer gain?
We have found that getting the work force onboard with online communications can help to make the organization more nimble and quick. Key messages can be communicated instantly to the work force, and these messages are actually heard and, when needed, responded to. Our work force has been given online tools to help them make decisions about which medical plan option might be best for themselves and their families. This saves them time and money and helps them make better decisions and better use of their pay, which increases employee satisfaction.
Lastly, because we have a fully integrated HR/Benefits portal, our employees can easily navigate among sites without having to remember separate Web addresses, user names or user IDs, and passwords. This integration helps employees quickly and easily get where they need to go and is one of the key reasons that we achieve more than 90 percent participation in our wellness program each year.
Employers need to think beyond just employee benefits when developing their Web strategy. They should think about all aspects of online self-service for employees and if they are looking for a strategic partner, find one that has the ability to offer additional services when they are ready.
John Galley is president of EBenefits Solutions, part of the UPMC Insurance Services Division. Reach him at (412) 647-3393 or email@example.com.
Insights Health Care is brought to you by UPMC Health Plan
While the future of health care reform in its entirety remains uncertain, many provisions of health care reform are already in place as a result of the Patient Protection and Affordable Care Act (PPACA). And there are things that businesses must be doing now to stay on the right side of the law.
As an employer, have you taken the necessary measures to ensure your business is compliant? If you haven’t, you could find yourself in trouble with the Department of Labor, says Ron Smuch, insurance and benefits analyst at JRG Advisors, the management arm of ChamberChoice.
“The DOL has begun exercising its investigative authority to enforce compliance with the health care reform law, requesting that health plan sponsors provide proof of compliance with PPACA’s mandates,” says Smuch.
Smart Business spoke with Smuch about the DOL’s audit requests related to PPACA compliance and what businesses need to know to stay on the right side of the law.
What areas has the DOL been looking into?
The DOL’s audit requests related to PPACA compliance have been divided into three categories — requests for grandfathered plans, requests for nongrandfathered plans and requests for all health plans.
A grandfathered plan is a group health plan that existed as of March 23, 2010 — the date PPACA was enacted — and that has not had certain prohibited changes made to it since that date. If a plan is grandfathered, it is exempt from certain health care requirements, such as providing preventive health services without cost sharing. However, if a plan makes changes — including changing providers, increasing co-insurance charges, significantly raising co-pays or deductibles, significantly lowering employer contributions, etc. — it loses its grandfathered status and must comply with additional health care reform requirements.
Regulations require a plan to disclose to participants (every time it distributes materials describing plan benefits) that the plan is grandfathered and, therefore, not subject to certain PPACA requirements. For grandfathered health plans, the DOL has been requesting records documenting the terms of the plan on March 23, 2010, and the participant notice of grandfathered status included in materials that describes the benefits provided under the plan.
If a plan has lost its grandfathered status, what must it do differently?
Plans that do not have a grandfathered status must comply with additional PPACA mandates, including providing coverage for preventive health services without cost sharing. For nongrandfathered health plans, DOL audits are requesting documents related to preventive health services for each plan year beginning on or after September 23, 2010, the plan’s internal claims and appeals procedures, contracts or agreements with third-party administrators, and documents relating to the plan’s emergency services benefits.
Some of PPACA’s mandates apply to all health plans, regardless of whether they have grandfathered status. For example, all plans must provide dependent coverage to age 26 and must comply with the PPACA’s restrictions on rescissions of coverage and on lifetime and annual limits on essential health benefits.
The DOL has been requesting the following information from both grandfathered and nongrandfathered health plans: a sample notice describing enrollment opportunities for children up to age 26; a list of participants who have had coverage rescinded and the reason(s) why; documents related to any lifetime limit that has been imposed under the plan since September 23, 2010; and documents related to any annual limit that has been imposed under the plan since September 23, 2010.
What else do employers need to demonstrate?
Employers should be prepared to further demonstrate their compliance by producing records of the steps they have taken to comply with PPACA requirements, including plan participation information, plan amendments or procedures that were adopted, and notices that were provided to those covered, such as the notice of grandfathered status or notice of enrollment for children up to age 26. Plans must also show that they cover out-of-network emergency services without requiring more cost sharing that would otherwise be required by covered participants using in-network emergency services.
If a plan’s PPACA compliance documents are maintained by a service provider, the employer should make sure the necessary documents are being retained and can be produced upon request. Your adviser can work as an intermediary with the insurance company/service provider to ensure compliance requirements are satisfied.
And if your company receives a PPACA audit request from the DOL, consult with your advisors immediately for more information on how to proceed.
What are the penalties for failing to comply?
Penalties are significant. Under PPACA, employers with more than 50 employees are required to provide coverage. Those that fail to do so will be assessed a fine of $2,000 per employee per year, minus the first 30 employees. So an employer with 50 employees that does not provide coverage would pay a penalty on 20 employees, or $40,000 a year.
An employer that offers coverage can also find itself in trouble. For example, an employer’s willful and intentional failure to comply with the Summary of Benefits and Costs requirement may result in a penalty of $1,000 per day per participant. And while the cost of providing coverage for employees is tax-deductible for employers, the cost of paying penalties is not.
Ron Smuch is an insurance and benefits analyst with JRG Advisors, the management arm of ChamberChoice. Reach him at (412) 456-7017 or firstname.lastname@example.org.
Insights Employee Benefits is brought to you by ChamberChoice
A significant part of the risk management process for any business enterprise is the proper classification of its work force for federal employment tax purposes as either employees or independent contractors.
“The risks from misclassification are a potentially significant underpayment of employer Social Security, Medicare and unemployment taxes, as well as the interest and penalty from failure to pay such employer taxes and for failure to withhold income taxes,” says Walter McGrail, senior manager, Cendrowski Corporate Advisors LLC.
Employers, he says, are responsible for withholding taxes for employees, but they are not responsible for such taxes on independent contractors.
Smart Business spoke with McGrail about the Voluntary Classification Settlement Program (VCSP) and how it can be used to a business’s advantage.
What are the factors for determining work force classification?
For more than 20 years, the IRS has adopted the so-called ‘common-law’ test for classification of workers as employees or independent contractors. The common-law test for classification is used to determine whether business managers have the right to direct the ‘means and details’ of the services being performed. Under the ‘means and details’ standard, it doesn’t matter whether the business managers actually direct the means and details, only whether they have the right to do so. The IRS has published a list of the ‘20 factors’ used to make the common-law determination of classification. Generally, such factors fall into one of three categories: behavioral control, financial control and the relationship of the parties.
What is the IRS Voluntary Classification Settlement Program?
Work force classification has long been a source of acrimony between the IRS and taxpayers. For prospective employers, classification of its work force using independent contractor status has some obvious advantages: lower employment tax costs, less burdensome reporting (1099s vs. W-2s) and non-inclusion in employee benefit programs. While the IRS has a real economic incentive to audit potential employers for taxes, interest and penalties related to prior years can be very costly for the IRS to conduct.
In an effort to coax voluntary compliance from taxpayers, the IRS has rolled out what amounts to a relatively inexpensive amnesty program, the VCSP. In exchange for taxpayers’ agreement to voluntarily treat their work force as employees for federal employment tax purposes going forward, the IRS will limit the exposure of qualifying employers to employment taxes on previous periods to a one-time surcharge equal to approximately 1 percent of the most previous year’s wages. The surcharge can be a bargain compared to the actual cost of tax, interest and penalty for all years open to IRS inspection, as well as the cost of defending an IRS audit.
How do employers qualify for the program?
In the event that a taxpayer’s risk management analysis demonstrates that the VCSP is a cost-effective means of managing its employment tax risk, the employer must meet the following qualifications: the taxpayer must enter into a closing agreement and pay the entire surcharge at closing; the taxpayer must have treated its work force as independent contractors for the previous three years; the taxpayer must have filed U.S. Form 1099 reporting the payments to such work force as non-employee compensation; and the taxpayer or its business must not be currently under audit.
What additional risk assessment might be required before taking advantage of the VCSP?
For any employer that has assessed its exposure to employment taxes, and related interest and penalties for misclassifying its work force in a prior year, there are other risks to assess. First, and as suggested, the VCSP requires full funding of the amount due at closing. To the extent that a taxpayer is in financial difficulty, they should assess whether it makes sense to even apply for the VCSP.
Secondly, taxpayers opting under the VCSP must agree to keep the statute of limitations for audits open for six years after the first year a taxpayer participates in the program. Normally, a taxpayer’s statue of limitations period for assessment of employment taxes closes after three years.
Third, the VCSP in its current form does not necessarily shelter the work force from assessment by the IRS from penalty or interest with regard to personal tax returns. While it is unclear that the IRS would pursue any claims against such employees, the IRS would have authority to do so if it chose to. The possible cost to employees should at least be considered.
Finally, each state provides for its own employment and withholding tax requirements. As it currently stands, the VCSP does not preclude a state or local taxing authority from relying on participation in the VCSP as an admission by the employer of responsibility for such state and local employment taxes for any open year.
For each of these reasons, any employer that has weighed the cost and benefit of complying with IRS guidelines for registering its work force for employment taxes must evaluate all of the risks associated with participating in the VCSP. Contact a CPA to assist you with the difficult task of properly executing the risk management process for employment taxes.
Walter McGrail is senior manager of Cendrowski Corporate Advisors LLC. Reach him at (866) 717-1607 or email@example.com.
Business litigation is an expensive process. Indeed, it is now common for parties to spend years producing documents, attending depositions and arguing motions, all of which happens before reaching a trial. As a result, experienced executives and in-house counsel often want to know how they can promptly settle a dispute on favorable terms.
Smart Business spoke with Richard L. Miller II, a partner at Novack and Macey LLP, about settling a lawsuit on the best terms possible.
What is the secret to settling a case?
In a word, information. In order to settle a complicated case, it’s important for an executive to know four things. First, he or she needs to know the facts. What do the key documents say and what will the players actually testify to? Parties are commonly surprised by such things as: a third party’s recollection of what happened; a damaging email that they did not know existed; or the meaning of an overlooked contract provision.
Second, it’s critical to know the law. The law will tell you what claims, counterclaims and/or defenses you have. But there are two sides to the majority of business disputes that make it to a courthouse. In order to make sound settlement decisions, you will need straight advice from a seasoned litigator about the likelihood of prevailing on each claim or defense.
Third, it’s vital to understand the motivation of the other side. Many times, people think that business litigation is purely about dollars. This is usually not the case. For instance, is the opposing entity in dire financial straits such that it simply cannot pay the amount? Or, does the opposing party fear having its conduct or practices publicized in the course of litigation? All too often, parties incorrectly assume that they know what is driving the opposition’s decisions.
Fourth, have a clear and realistic sense of your tolerance for risk and uncertainty. It commonly takes two to four years from the time a case is filed until a jury renders a verdict. After that, the loser may appeal. The appeal could result in a second trial or yet another appeal to a higher court. This process can be a roller-coaster ride — particularly if a judge makes a bad ruling, new evidence is discovered or key witnesses become unavailable.
What are a few common mistakes you see when parties are trying to settle?
One common mistake is rushing the process. It’s natural for busy executives to desire a fast resolution. However, at the same time, most decision-makers are loath to take a ‘first offer.’ Consequently, several counteroffers are often necessary. This back-and-forth usually takes at least a few days and, more likely, a few weeks. If your opposition senses that you need a quick settlement, it will attempt to use that information to its advantage.
Another mistake is overreaching. At the outset of a dispute, less experienced negotiators sometimes make an outrageous demand. This can stiffen the resolve of the recipient. Then, the overreaching party finds it difficult to make a reasonable offer without losing all credibility. Consequently, the parties proceed with litigation. This problem can be avoided by making demands and offers within the realm of reason.
A third mistake that’s frequently made is not understanding damages. In order to obtain a monetary award, you must have a legal theory that entitles you to relief. For example, if a former employee steals a customer list, you probably will not be able to obtain a money judgment if you cannot prove that the employee used the list, or shared the list, in a way that caused you to actually lose a sale or customer.
Are settlement conferences with judges effective?
It depends. If the parties and their attorneys are reasonable and experienced, a judge rarely tells them something that they do not already know. However, this is frequently not the case. In such instances, the right judge can be of tremendous assistance.
If the plaintiff is behaving outrageously, the judge can tell that person that his or her case has serious weaknesses and that his or her settlement position should be adjusted accordingly. Likewise, if one of the attorneys is not giving his or her client good advice, a judge can offer a fresh perspective.
Because judges are impartial and imbued with authority, litigants will often accept advice or arguments from them in a way that they will not from either opposing counsel or even their own lawyer. Still, some judges excel at resolving cases, while others do not.
In order to truly add value, a judge must become familiar enough with the evidence to be able to express opinions on the parties’ legal theories and settlement positions. Merely giving a canned speech about the costs and uncertainties of litigation rarely adds value.
Are written settlement agreements worth the time and expense of preparing them?
Yes. If a case was worth litigating, it is surely worth sewing-up with a written settlement agreement. Remember, the attorney who handled your case is already familiar with your business, your adversary and your concerns. Now that he or she has that knowledge, spending a bit more to protect your rights is a sound investment. Moreover, the best person to protect you against future litigation is someone who litigates for a living — we know all of the tricks of the trade.
Richard L. Miller II is a partner with the business litigation firm Novack and Macey LLP. Reach him at (312) 419-6900.
Insights Legal Affairs is brought to you by Novack and Macey LLP