The great majority of business litigation matters end up settling at some point – almost always at some point prior to trial. Several of my business litigation colleagues have only tried a handful of cases – a fact that demonstrates just how proficient they are at settling their cases. So here’s the question: Should I settle?
The answer is a resounding probably. In most cases, all things being equal and both sides being well represented, the parties should be able to evaluate their relative exposures and identify a mutually acceptable resolution. Keep in mind that a settlement is a compromise. That means that both sides will be giving up something in order to avoid the risk (large or small) of a possible worse result. Here’s the rub. If you settle, you can’t win. Stated differently, if you absolutely need to win, then do not settle. Otherwise, you should be open to settlement and pursue that path, if available.
A path to settlement is not always available. Sometimes, your adversary will have assessed that it needs to win. This means your case will be tried. Other times, your adversary’s position will be unreasonable, resulting in your trial exposure being more desirable than an available settlement.
Because some cases must be tried, you should always have a strategy that includes not only settlement, but also trial. And you should always be represented by counsel who is able to settle your case, or try your case, as circumstances dictate.