When preparing for a mediation, counsel and clients are focused on the core elements of analyzing a case: facts, liability, causation and damages. There will be endless discussions about legal issues and whether damages can be substantiated. How good are the defenses? There may be a strong dispositive motion. There may be a smoking gun document. These are all critical components of a case analysis and provide an important foundation for a settlement evaluation. However, counsel and litigants often fail to consider other elements that may have a significant impact on the outcome of a case. Sometimes these variables are difficult to categorize. I like to think of them as intangibles. The following is a list of some intangibles that are important to consider when evaluating a case for settlement as well as trial.

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