Go to Trial or Settle?
Regardless of the type of case - be it a common wealth case, small claims court, criminal proceeding or otherwise - the most common question a client asks of counsel is "Should I settle?" This question is addressed to the counsel for the defense and plaintiff alike. The answer must be carefully considered and reevaluated throughout the negotiation process.
Bradshaw Trial Consulting considers the following factors integral to the trial or settle decision:
Trial and litigation fees. Probability of winning in court. The scandal or controversy associated with a trial.
The first step in deciding whether to accept a negotiated settlement or move to trial is the discovery phase. In the discovery phase, all information related to the case is laid out in a neat, organized manner. The consultant diligently reviews evidence, documents, and legal research to ensure that the aforementioned factors of the decision are accurately communicated to the client. Clients need to be particularly honest with council during the discovery phase because unknown skeletons in the closet may be a game changer late in settlement negotiations.
Determining the probability of winning in court is the next step of the process. If the evidence and legal research points to a guaranteed win in court, the council has an excellent negotiating position. However, a sure win does not necessarily indicate that a trial is the best decision for the client. The trial and litigation costs compounded by the publicity associated with a trial often make a trial too expensive to pursue.
Trial and litigation costs are the only purely quantifiable factor involved in the decision to settle or go to trial. Any experienced councilor understands the costs of a trial. When making the decision whether to settle or not, the total cost of trial and litigation should be in the form of a worst case scenario. Assuming a swift victory is foolish and misleading. The maximum possible litigation fee and the highest possible trial fees need to be figured into the decision. A strong councilor provides various litigation and trial fee scenarios attached to the probability of the scenario.
Whether a court case is a sure win, doomed to failure, or anywhere in the middle, open and frank negotiation is beneficial to both sides of the case. Negotiations aid in discovering the opposing council's information. Furthermore, negotiations often result in mutually beneficial results. Experienced councilors often know the likely result of a trial before the trial occurs. It is, therefore, beneficial to both to save their clients the trial cost by settling if agreeable terms can be provided.
In cases where the parties are unable to reach an amicable settlement, court is the last remaining option. Trials are notoriously unpredictable. When a jury is involved, the result of the case is dependent on twelve unknown people. Regardless of their agreement to act in accordance with the law, jury members are human. They are certainly less familiar with the legal aspects of the case than the councilors involved in the case. It is the duty of the litigator to appeal to the human aspect of the jury and communicate the implications of the law and the evidence effectively. Tough litigators are sometimes able to steal a seemingly slam dunk decision from the opposing council.
In any legal case, the guidance of a diligent and well-versed councilor is strikingly important. Experience and attention to detail spawns wise legal decisions. Evaluations of whether to settle or go to trial differ with every case and every client. In each of these diverse cases, the councilor must be a strong, trustworthy advocate of the client's interests.