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The Art of Knowing When and How to Settle a Case

On Behalf of | Dec 1, 2019 | Breach Of Contract, Trust Disputes

Buffington Law Firm’s main practice areas consist of trust litigation, real estate litigation, and business/corporate litigation.  There is one common denominator to these three practice areas — that is the need for the client to know if, when, and how to settle a case.

Whether (or how) to settle the case is strictly the decision for the client to make.  While the attorney can give advice the law is clear that at the end of the day only the client can make, accept, or approve a settlement.  This is how it should be, and this is how it is.

More than 95% of all California civil cases settle out of court.  There are many reasons for this.  In this brief Blog article I shall touch on a few of the main ones.

1.  Eliminate Risk.  Trial is always risky.  Even the strongest case is not a sure thing in a courtroom.  If it is a jury trial, that always introduces uncertainty.  Court (judge-only) trials are also risky and can be unpredictable as well.  If you can negotiate a settlement that satisifies your objectives (not to be confused with giving the client everything he or she wants) this eliminates the inherent risk and uncertainty of the trial process.  Settlement allows the parties to control the outcome of the case rather than putting it into the hands of a possibly unsypathetic jury or hard-hearted judge.  

2.  Limit Costs.  There is no getting around the fact that litigation is rarely cheap and is often expensive.  While Buffington Law Firm prides itself on being mindful of costs and of the client’s litigation budget, the economics of the legal profession combined with the nature of the trial preparation process, about guaranty this.  Further, it is notorious that litigation costs tend to increase as the trial date approaches because of all of the preparation that this entails, not to mention the costs of the trial itself.  Settlement can cut out these costs, especially if it is reached other than at the last minute.  Even if a client does not get everything hoped for, it is often the case that a settlement reaches an outcome which net of the costs of litigation is overall a better deal.  Since settlement also eliminates the uncertainty of outcome, this is often especially true.

3.  Avoid Time Commitment.  Even a modest trial may stretch out for weeks or longer.  Many courts only conduct trials for part of the week.  This means that the trial process is disrupting everyone’s schedule for a considerable time.  Settlement avoids this.  For some clients this is a very real consideration.

4.  Avoid Publicity.  When a long trial is going on, often friends, relatives, or business associates are called upon to testify.  This often is disruptive and exposes the parties’ personal or business affairs to others.  This can carry with it very real downside risks and costs.  Settlement often avoids most or all of this.

So How Do I Know Whether to Settle?

Whether (or how) to settle a case is an art, not a science.  Making this decision is often extremely stressful.  Sometimes the path to settlement is clear; more often it is not.  The difficulty is compounded by the fact that most clients have never had to make the decision concerning settlement of a case before.  And yet, this is usually a very important decision.  My advice: listen to your lawyer and talk it over.  An experienced trial lawyer has a better understanding than the client concerning the risks and uncertainties of litigation and of your particular case.  Usually the attorney knows better than the client does how the case will likely come across in court, what the risks are, and so forth.  While the decision to settle is always ultimately for the client to make, be respectful of the fact that an experienced trial lawyer has “been there and done that” and probably has a much better understanding of the likely interplay of the complex factors involved.  The client should never pass up considering his or her lawyer’s perspective on settlement.

At Buffington Law Firm we are always prepared to take the case all the way to trial if that is what the client wants.  This fact in and of itself often results in superior settlement outcomes when the other side sees and knows that we are prepared to “go the distance” if they will not see reason.  

If you have a case within our practice areas that you believe may merit a lawsuit, or if you are  being sued, we invite you to contact us for a free legal consultation.  All consultations are with an actual experienced trial attorney and are completely protected by attorney-client privilege.  Call us today!