The long caucus is not a gap in the work. For counsel, it is most of it.
You know the stretch I mean. It is eleven in the morning, I have been in the other room for fifty minutes, and your client has asked you twice whether this is normal.
For most of my career I was the one sitting in that room, watching the clock and managing a client who had begun to suspect the whole day was theater. Now I am on the other side of the wall. Here is what is actually happening back there, and what I think counsel should do with the time.
If I come back in fifteen minutes, the news is usually not good. It means the conversation did not go anywhere, or the other side gave me a number without giving me a reason, and there was nothing to work with. A long absence generally means the opposite. It means I am doing something slow: testing an assumption, walking a party through the cost of the next fourteen months, or getting to the thing that has not been said out loud yet. That last part takes the longest and is usually where the day turns.
Your client has no framework for what a long silence means. You do. In the absence of information, they will build a story, and the story is almost always worse than the truth. They will also take their cues from your posture. Tell them at the start of the day that the caucuses will run long, and that a long one is a better sign than a short one. It costs thirty seconds in the morning and saves an hour of anxiety by lunch.
Then use the break for the work that cannot be done at four o’clock. Pressure-test the bottom line your client walked in with, which was probably set before the summary judgment ruling or before a key witness became unavailable. Price the alternative in real terms: not just fees through trial, but time, attention, the witnesses who still work there, and what a public filing does to a customer relationship.
Develop your non-monetary terms before you need them. At three o’clock, when the remaining gap is a number neither side wants to close alone, the thing that closes it is frequently not money. A reference with agreed language. A phase-out period. A carve-out. A payment schedule that lets the other side manage its own quarter. These are cheap for the other party to give and can be worth a great deal to yours, but you cannot draft them at three o’clock. You can draft them at eleven.
Have the mechanics conversation early, too. Payment timing, confidentiality and its carve-outs, non-disparagement, mutual releases and whether they run to individuals, dismissal with or without prejudice, who drafts. Every one of these is easier to resolve at noon than at 5:30, when everyone is tired and one side is looking for a reason to stop.
When I come back, use me. Ask what is actually driving the other side, as distinct from what they are asking for. Ask what I think the real obstacle is. Ask for a read on where the risks sit if this does not resolve today. I will not tell your client what to do, and I will not repeat anything a party has asked me to hold, but I will give you my honest assessment. And tell me when the shape of the day is not working. Most of what makes a day work is decided by counsel before ten in the morning.
One note for in-house counsel. The most common reason a day ends short has nothing to do with the merits. It is authority that was capped three weeks earlier by someone who is not in the room and cannot be reached after five. Cases move at mediation because information arrives that nobody had beforehand, and that information should be able to change the number. The question worth raising with your business stakeholders is not what the ceiling is. It is who can move it, and whether they will pick up the phone at four o’clock on a Thursday.
If you are sitting in that room right now wondering whether I have forgotten about you: I have not. The longer I am gone, the harder the other side is thinking.