To Settle or Go to Trial – That’s the Question
Almost like a Hamlet monologue, the question of whether to settle or go to trial ends up having to be answered by anyone who initiates a lawsuit through an attorney. However, that decision process is made in anything but a vacuum.
Clients are pressured by injuries and losses to find a recovery at some point reasonably soon, representation has costs it needs to cover since most attorneys operate as businesses themselves, and the court system will only entertain a lawsuit for so long.
The idea of going to court, with a high rate of risk of losing versus settling where an outcome seems to be far more controllable can be very attractive to all involved. However, it can also be a mistake.
The Primary Cause of a Lawsuit
It’s important to remember why a lawsuit was initiated in the first place. A harm was caused by someone who could have avoided that result or worse, should have avoided it under a duty of care.
Recovery can be more than just financially restoring a victim; it can also be about righting a wrong and making sure that a party thinks twice before doing harm again to someone else.
The punitive aspect of a case may very well need to go to trial to show publicly what was wrong and why and to have that confirmed by a court. So, there’s no question about what needs to be corrected.
The above won’t happen in a settlement. The settlement process is about reaching a mutual agreement between the plaintiff and defendant, which includes releasing all claims and frequently includes a clause for confidentiality.
By doing so, the defendant gets to resolve the matter privately without having to admit in public it did wrong. That can be very powerful when it comes to organizations or companies that want to keep doing things as they have without any acknowledgment or need for change. A trial case win forces that kind of issue to be very public instead.
The Risk is Higher, But May be Worth It
Unlike a settlement, however, a trial is all or nothing in many cases. It is adversarial, so in most cases one side wins and one side loses. If the suing party doesn’t have enough of a strong case, the decision could actually reverse everything and let the defendant walk away with an appearance of innocence.
As a result, a case should only be brought to trial where there is a very strong case to be made with very strong supporting evidence. Even though that seems like a pretty high bar, and a very risk-reward style situation, we don’t want to make you feel like settling is the right path.
It’s often not, even if it is more difficult. Further to that point, not every law firm is willing to fight to make sure even the settlement is adequate, recommending a client to take what’s offered at the outset.
Getting around this and providing better results depends heavily on the skill of the legal representatives involved. Use experts in civil case strategy like Killian, Davis, Richter & Kraniak PC, and similar litigating counsel.
No one should feel like they can’t go to trial if they believe strongly in their case, but they should also partner with solid skill and experience in litigation; it’s a very different arena than a negotiation for a settlement.