Trick or Treat?

Trial or Settle? Trick or Treat?

I’ve enjoyed the opportunity of congratulating a client on settling their matter prior to trial. Many times. Perhaps too many times. While I do have a vested interest in the case going to trial, I can certainly understand any reluctance on the part of a litigant or counsel, given the incredibly high level of stress and risk involved. What are a few of the factors to be considered?

1. How have settlement negotiations been going? Are the numbers getting closer together, or does one side expect the other to give it all up? Settlement is not about winning or losing – it is more about compromise, which is sort of like winning AND losing at the same time.

2. What is the reputation of opposing counsel? Some attorneys and firms have a strong reputation for winning nearly every case they try. Does that really matter? Perhaps in a close case, where courtroom experience can have a significant effect, but don’t be convinced that past performance guarantees a verdict.

3. What about the evidence? Now there’s an interesting question, especially since that is exactly what the jury is going to be asked to consider and deliberate upon. Not opinions, not reputations of counsel, but the evidence. If you’ve got the evidence, you’ve got the verdict – provided, of course, you’re able to present it effectively.

Another recent Litigation-Tech award!

4. Where are the leaks in your boat? I’ve listened to many attorneys and clients as they’ve convincingly explained their story. If there were only one story to be told, it would be a simple formality to get it done in trial. However, the next question I always ask is, “Where are the problems with our case?” I always ask for trial briefs – not only ours, but perhaps even more importantly, those from the other perspective. Trying to “believe” both sides is the key to forming an objective opinion. That is what a jury is expected to do.

5. Trial is not about settling. By this, I mean that once a decision has been made to go forward with trial, there is no room for compromise with respect to representation of your client. I am not saying that a settlement cannot be reached during, or even after trial, but that there are no good excuses for approaching it with anything less than maximal effort. This may mean long days, spending lots of money, and simply outworking the other side. Litigation is definitely not a 9-5 job.

These are just a few of the many things that should be considered in every matter preparing for trial. If you’ve been building up the case for some time, don’t forget to get other perspectives and feedback from those unfamiliar with the details.