Potential ways surveyors might obtain data on settlements

General counsel hold their settlement data close to their vest. They fear repercussions in litigation if those amounts or terms leak out. Therefore, those who want to collect data on corporate settlements for benchmark purposes should dispense with direct inquiries yet try oblique ones.

Surveys could ask for the average amount paid over a three-year period. That smoothes out the peaks and conceals specifics. Or they might ask for a range or an estimate of only those amounts that have been publicly disclosed, such as fines paid to government agencies. Another way forward would be to ask for the aggregate minus the largest settlement, which is probably the most controversial or proprietary. Or the average – total settlements divided by cases settled during a year – would protect both the numerator and denominator.

It might also be easier to collect data on what law departments receive in settlements. Since amounts paid dwarf amounts collected for most corporations that would be provide meager insights.

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