I saw a great post from divorce attorney Eliana Baer about her answer when a client asked her whether she believes in settlement or litigate, litigate, litigate. Her post is a fun one but the answer is an important one for clients (and often lawyers) to understand.
I am a believer in settlement under the right circumstances and when it is in the client’s best interests. If you can settle your dispute reasonably it is a big benefit to you. You can save on attorneys’ fees, but maybe even more importantly, you take control of your case to determine the outcome on your own. In those circumstances your case will not be determined by a judge, jury, or arbitrator all of whom may give a wholly unpredictable and surprising result. Sometimes that result is good and you’re happy you took it all the way to trial or hearing. But other times the result is disappointing and then you surely wish you would have settled.
The timing of serious settlement discussions is important. In my experience it is hard to settle reasonably if the timing is too early. If the lawyers do not have all the facts, an understanding of the law or comprehend the possible downside of their case, it is incredibly hard to settle reasonably.
In order to position the case for settlement it is important the other party understand the upside of my client’s case and the downside of their own case if a settlement is to occur. But keep in mind this process is going both ways. Our client also needs to assess the risks of proceeding to trial as well. For business cases like we handle, it is usually important for our client to also consider “business factors” because we are generally talking about money at issue. Business factors may include the time it will take you away from your work to continue with the case, whether you can collect from the other party, or whether the monetary expenses of proceeding to trial or hearing justify the possible recovery.
It is rare but sometimes I’ll hear from the client that it is about the principle of the matter. Trust me, it is rarely about the principle of the matter in the end. A client usually cares about the costs dearly. I can only remember a couple of rare instances where a client said it was about the principle of the matter and actually meant it.
Abraham Lincoln once said:
“Discourage litigation. Persuade your neighbours to compromise when you can. Point out to them how the nominal winner is often a real loser – in fees, and expenses, and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this.”
While I understand the wisdom in Lincoln’s quote, it seems Baer’s answer to her client’s question about whether she believes in settlement hits the mark directly and it’s one I wholeheartedly follow when she says,
Yes, but only at the right time and under the right circumstances, provided it is in my client’s best interests.