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Should I Settle?

by | Dec 5, 2020 | Firm News |

Business and employment litigation disputes can be tricky, and it is difficult to accurately predict a trial outcome. For this reason, it can be equally complicated to evaluate the value of a case for settlement purposes. That said, the courts will usually apply pressure on both sides to settle a case, and in just about every case, there will be some discussion of potential settlement.

An experienced litigator can and will walk you through the benefits and drawbacks of a settlement in any particular case. This process involves a reasoned evaluation of the likelihood of success on your claims or defenses, the cost of attaining the desired result, the risk or exposure that will be occasioned in attempting to pursue the desired result with further litigation, and many others.

The client’s active role in this process is essential. It is your case, and you get to decide whether or not to settle it. Your lawyer may strongly recommend an approach to settlement, but he or she cannot settle the case without your authority.

Over the course of many years, I have observed the following flaws that clients may adopt in their approach to evaluating a settlement.

1. Living in the past. You should evaluate the case based on its status now and its likely status in the future. It doesn’t matter what the case was worth before that witness tanked at his deposition, or the judge entered an unfavorable Pretrial order. Your case may be stronger or weaker than it was when you made a strategic decision at the outset of the case. You must adapt your settlement strategy as the case progresses. Otherwise, you will compound a bad result, or conversely, fail to obtain the benefits of positive changes in the case.

2. Emotion vs. Logic. You already know the answer to this one. Emotion should not guide your business decisions, and whether or not to settle is a business decision.

3. Contrarianism. Some clients believe that, if the other side is offering something, it must be bad for them. This approach fails to realize that in almost every case there are some things that may be of mutual benefit to both sides. Identifying those things is vital to getting the best settlement possible. Settlement are not always a zero sum game. Keep an open mind.

4. The Search for Justice. Clients will often try to avoid tough financial decisions by looking to the notion of justice with the assumption that justice will be meted out in court. But justice is rarely found in a verdict in a business dispute. What you will get at trial is a result, and the question is whether or not you are better off permitting the result to be decided by a jury, or whether the parties themselves are better suited to agreeing to the result.

5. Two to Tango. No case can be settled on reasonable terms unless both sides are interested in settling. If your strategy is to settle at all costs, you will probably get squashed in the settlement negotiation. If your adversary is not reasonable in its approach to settlement, get over it and get ready for trial.

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