I am still playing catch up this week. Call it the natural recovery of the trial attorney. As I run from trial to trial where I feel like I am begging the opposing side to even CONSIDER compromising, it came to me: aren’t we supposed to be trying to settle these cases?           

            Maybe I am one of the slow kids, but I have always viewed trials as the venue and place of last resort for a lawsuit. Aren’t we SUPPOSED to be trying to settle our cases in as favorable way as we can in our client’s best interests? As any good trial lawyer knows and understands that the risks of trial are inordinately high (as is the expense), even with the best of circumstances on your side. And let’s be clear, there are too many cases where settlement is not a reality; but the vast majority of cases really CAN be settled prior to passing through those hallowed halls of a courthouse. All it takes is the creativity and tenacity of the attorneys involved; as well as attention to the client’s needs and the deliberate and labored task of repeatedly working with your client to get them to better understand the risks as well as the rewards of trials. But, am I wrong about this?

            The Courtroom is always available for the most acrimonious and complicated disputes. That I feel comfortable relying upon. So, since the Courtroom is always there for us, why not do all that we can to save our clients from having to utilize it? We all know the perils of trial, don’t we? The unpredictability, the expense and let’s not forget the emotional toll it takes on those that are just not used to the cold and sometimes arbitrary way the Courtroom metes out “justice”. So, the place to work the hardest in advance of trial is in trying to actually settle a case and shield the client from the trauma of the Courtroom. But, as I soldier through working my cases and come up against a diverse group of attorneys as opponents, I really and truly wonder if this is not the widely held advice I thought it was. Yes, we as private attorneys can make more money on a case going to trial than settling a case. But for me, this is a very shortsighted way of viewing things. This way of thinking fails to take into account that while you can bill those clients whose cases have to go to court, you miss out on all the other business that you could be attending to while you are busy with that one client’s trial. If you are embroiled in trial all the time, when, pray tell, can you entertain new business? Also, while making a living is very important to the trial lawyer, what should be MORE important to us is leaving our client in a better position than we found them. There will always be cases for trial; always. However, I try my BEST to try and settle cases before they ever hit the courtroom. And I am a litigator who finds her most comfort in the courtroom.

             But I think some attorneys view settlement as an impediment to their ability to earn the most money they can for a client’s matter. This is short sighted, in my opinion, as this way of thinking fails to take into account the reality that there will always be those cases that just cannot settle, no matter how well intentioned the lawyers are. And that those cases will always be a part of the busy and talented litigator’s schedule and repertoire. In addition, that way of thinking doesn’t take into account that those clients with whom you settle their case are much more likely to refer others to you and to come back to you should they find themselves in legal trouble once again. This may not be the case if they feel that you don’t do as much as you can to find a way to NOT have them embroiled in a costly and expensive trial.

            There will always be those instances where settlement is not likely. Whether that is because of really complex legal issues that have no readily accessible answer or especially difficult clients that refuse to believe you when you talk about the perils of trial. I think it is more important for us to counsel our clients about settlement and work hard to get them to a juncture where they are open to settlement; reasonable settlement. Because it is almost always in a client’s best interest to settle a case. At least, that’s my story and I am sticking to it.  

Image Credit: 36054504 © Airdone | Dreamstime.com