At the conclusion of discovery of every lawsuit, two questions arise: 1. Should the case be settled? 2. Should we file a motion for summary judgment?
The questions are interrelated. The possibility that one side may have a chance to win the case on summary judgment should certainly affect the case’s settlement value. If that factor is not being adequately accounted for in the settlement negotiation, then I would lean toward filing the motion. But if the possibility of obtaining summary judgment has been taken into account in the settlement negotiation, a conundrum arises.
If you file the motion and forgo the settlement opportunity, the outcome of the motion will change everything. If summary judgment is granted, the case is over and you won. But if summary judgment is denied and the case goes forward, your settlement position has been damaged.
The strategic factors that should be considered when facing this conundrum vary from case to case. The attorney and client should have a frank discussion about the best strategy before choosing.