Litigation can often be emotional, and rightfully so. Any event that leads to a lawsuit usually ranges from the unfortunate to the outright tragic. It can impact families and businesses and lives for many years, if not forever. Trial lawyers are always aware that the people they are advising have a set of emotions wrapped up in the litigation that sometimes need to be disentangled so that the outcome can truly be in the best interests of the client. These emotions often call for “Justice.” And justice, to many people, means a trial in front of a jury. Jury trials are a cornerstone of our entire justice system. Again, rightfully so. And there are times when a jury trial truly is the only prudent option.
But the fact of the matter is juries are inherently unpredictable. No lawyer, expert, or anyone else could ever predict the outcome of putting 12 strangers in a room and asking them to evaluate evidence and apply standards many of them have never even heard of. (Most jurors are admirably rigorous when called upon.) This is both the beauty and the difficulty of a jury system. In the world of negligence, you may not convince a jury that the defendant actually was negligent. You may not convince the jury that damages are related to the incident at issue. “Justice,” then, is a very tenuous thing if you pursue it through a trial.
And this is where settlements come marching in. Prudent? Decidedly so. But do settlements help clients feel that they have achieved justice? Well, that can depend on a number of things. But what is most important in the representation of a client? Letting them roll the proverbial dice in front of a jury? Or securing the best settlement you can and ensuring an adequate level of compensation for the injury they and/or their family have suffered?
Many trial lawyers also yearn to get in the ring, to try cases to our clients’ peers and let them sort out the verdict. We have long romanticized big trial wins in Hollywood but the reality of a decade of litigation and facing the possibility of an adverse verdict is not romantic in the least. It is scary, it can be painful, and you can lose.
The overriding foundation of any settlement is that the decision lies with the client. We can suggest and urge a certain course of action, but ultimately, the decision does not belong to the lawyer. It belongs to the client. Can the client feel comfortable walking away from a reasonable offer for the potential promise of both a larger sum and the satisfaction of a verdict? This question should figure prominently in any settlement discussions.
The second most important consideration is the value of the case in regard to the offer to settle the case. There are circumstances in which an offer is so baldly unreasonable that there is no reason to advise a client to accept it. These types of offers may or may not be made in bad faith, but the fact remains that an offer this low will rarely result in any net benefit to the client. Opposing parties are often quite a bit savvier than this, though. Usually, they have done their research and offer a settlement that’s eminently reasonable, not over the top, and not offensively small.
This is where doing the prudent thing for a client (and a client’s family) becomes not only difficult, but emotionally charged. Is a settlement a form of Justice? I’d argue forcefully that it is. Certainty is a powerful thing, and a thing you cannot put a price tag on. There is no certainty in a jury trial. With the appropriate case workup and negotiation, settlements can maximize both monetary value and the certainty of payment. Trials are powerful, necessary and can be game-changing. But they are not certain. This type of careful consideration, of the pros and cons of a settlement versus a trial, of Justice versus prudence, should underpin the client’s decision, and the lawyer’s legal advice. There may be times when choosing prudence is, in fact, the most “just” thing to do.