Settling for a Win

Lawyers like to advertise the cases that they pursue aggressively through trial and to total victory.  And, well they should.  Trying cases is what all good trial lawyers love to do, and it is the lawyer’s skill in the courtroom that ultimately helps establish his reputation.  But, since 85 percent (or more) of civil cases settle in our area, the question arises, What is a good settlement?

There is much to recommend when it comes to settling, especially if it can be done on favorable terms.  While winning in litigation is extremely satisfying, it is also extremely risky.  Even a well-tried case can result in an unusual verdict if a certain piece of evidence or argument did not sit well with the jury.  The law firm will also incur significantly higher trial costs should a case proceed to court.  While the law firm will advance these costs, they must ultimately be deducted from the judgment which is awarded.  Finally, we like to tell our clients about the general wear and tear of court on the client and indeed on the witnesses (who can frequently be close friends and family members of the client).  Even basic jury trials can take two or more days, and it is asking a lot of witnesses to wait their turn to undergo cross-examination.

Of course, most of these considerations also weigh heavily upon the defense.  The defense is also concerned about the possibility of a catastrophic verdict, about costs, inconvenience and all of the above factors.  For this reason, it is not unusual for opposing counsel to try to work out a settlement in many cases or to recommend mediation which is another way of getting to the same result.

After all of the groundwork is laid for a respectable settlement, lawyers sometimes find, for whatever reason, that their clients are somewhat resistant.  There are a couple of reasons why this might be:

1. The fair case value exceeds the available insurance coverage.  Throughout the course of many cases, the “damages,” medical bills, lost wages, pain, suffering, etc. continue to mount.  But, as a practical matter, it is difficult or impossible to recover more than the available insurance coverage.  In Virginia, for example, the minimum required liability insurance is $25,000, so we sometimes have the sad task to tell people that they may not be fully reimbursed.  This can be difficult to swallow and may compel an injury victim to want to pursue a full trial and judgment.
2. Wanting to “turn over the next card.”  Let’s face it, legal cases are exciting.  The phase between the filing of the suit and trial is called “discovery,” and like in a poker game, each new piece of evidence which is disclosed brings the case into sharper focus.  Yet many often serious settlement negotiations only begin after 90 percent of the discovery “cards” have been revealed.  The desire to turn over the last card to see the outcome of the case can be compelling is not always advisable.
3. The intrusion of psychological factors. Good attorneys evaluate the case for settlement based upon sound business principles, balancing risk, expense and reward.  It’s a fact that this analysis can feel rather cold after being in the throes of a pitched battle.  Injury victims can be overcome by a passion to seek “justice at all costs,” – or to punish the other side.  Sometimes the legal case can be one of the most exciting and interesting aspects of a person’s life, and the victim may find it impossible to imagine their life without the case!  An emotional desire to press on at any cost can sometimes obscure the original purpose of the case which was to obtain the maximum fair compensation.

We like to say that the lawyer’s job with regard to these issues flows from the two prongs of the lawyer’s license—as an attorney AND as a counselor-at-law.  Our job is frequently to hear the client’s concerns and to help the client process that which is both a business and emotional decision.  At the end of the day, the decision to settle or go to trial is solely that of the client, but it is essential that a mature and trustworthy relationship with the attorney allows for some objectivity.  Working with our clients, we can frequently help answer their emotional concerns while at the same time bringing a dose of reality to the situation.  For the 85 percent of cases that settle and the 15 percent that do not, that advice can help the client make the best possible decision at the most critical juncture in their case.