More than 80% of all litigation ends in settlement short of a jury verdict. However, it is the risk of an unpredictable jury verdict that makes this high rate of compromise possible. In effect, most cases settle simply because neither the plaintiff nor the defendant can be absolutely certain how an impartial jury will view the case.
Perhaps the most important decision that can be made in the course of a lawsuit is the decision to either try a case or settle it short of trial. A lawyer is under a professional duty to inform his or her client of all settlement offers the lawyer receives, but the client has the absolute right to order settlement or to refuse a settlement offer.
- WHY CASES GET TRIED
Generally speaking cases are tried because one side or the other misjudged the value of the case, making settlement impossible. As a rule of thumb, an experienced trial lawyer, who has properly worked up the case, should be able to advise his or her client as to the likely outcome of the case and the potential range of damages that might be awarded.
When both sides have evaluated the case as having a value within the same range, a compromise should be reached short of the uncertainty and expense to both sides of trial.
- HOW A CASE GETS SETTLED
An attorney who diligently works up a case for trial is an attorney who is likely to obtain the best possible settlement for his or her client. This is because the attorney will know the facts and the law applicable to the case and, equally important, the other side will know that the attorney is prepared to take the case "all the way."
At every stage of litigation an experienced attorney will explore the possibility of settlement. Cases can and often do settle simply through an exchange of information on an informal basis. In other cases, it is appropriate to employ Alternative Dispute Resolution techniques such as Voluntary Settlement Conferences, Mediation, or Arbitration before a retired judge to resolve the case.
Whatever method of lawsuit resolution is employed, a client should work in conjunction with his or her attorney to make sure the client is fully informed of the potential risks and benefits the case presents so that the client may obtain the optimal result under the circumstances.