Settling Your Claim or Suit

Whether you have a claim for legal or equitable relief, or are subject to (defending) a claim for relief, you will eventually be asked to consider a settlement.  In fact, attorneys (and most courts) will encourage opponents to settle their differences long before a trial is set.

A settlement is a compromise.  Lawsuits can be antagonistic and highly personal, making compromise much more difficult. However, under certain circumstances, it is the best option.

Case in point:  I had a case set for jury trial recently that I was very eager to try.  My clients and witnesses were prepped and on-call, my database of documents and exhibits were in perfect order, my outlines and arguments were being refined and polished for the jury…and we settled.  Why, after putting so much effort into getting ready to try the case, would both sides agree to settle?  For many reasons, but ultimately, because it was the best option for our clients.

Answering the following questions, with the help of your attorney, will allow you to gauge whether or not settlement is your best option:

1.  What is the claim or lawsuit worth to you?  Is it a certain amount of money, is it the viability of your business, is it a policy or statement you want to make by establishing some legal precedent?

2.  What are the strengths and weaknesses of your case?

3.  What are the strengths and weaknesses of your opponent’s case?

4.  What is the likelihood of your success?

5.  What is the likelihood of your ability to recover from your opponent (either a judgment or attorney fees, or both)?

6.  What is the likelihood of either reversal or affirmation of your judgment on appeal?

7.  How many years will the entire case (from investigation, to filing, to trial, to appeal) take?  Are you willing to wait that long for the outcome you’re seeking?

8.  What is the cost/benefit analysis of settlement?  In other words, how much are you willing to risk by undertaking both a trial and an appeal, which is often inevitable.

9.  Does your attorney, the person most qualified to make a judgment about your ability to win the case, recommend settlement? Either way, you should give any recommendation from your attorney considerable weight.  For the same reason you would not assume you know more than your doctor (if you’re not a doctor), or more than your accountant (if you’re not an accountant), you should assume your attorney is better equipped to evaluate the complexities and nuances of settlement than someone without legal experience. If they do or do not recommend it to you, there’s good reason.

In the end, if you trust your attorney to represent your best interests, you should also trust them to guide you through the settlement process.  When my clients were faced with settlement, we went through the process of answering these questions to better understand the underlying reasons for and against settlement, which allowed us to reach an agreement they were very pleased with.   Wouldn’t it be ideal if every working relationship were so productive?