Here’s a discussion I frequently have with clients:
Do we settle a case or push towards trial?
At the most basic level, whether to settle a case or go to trial is a matter of “easy numbers” and “hard numbers.”
Not surprisingly, the easiest number is zero. If no offer has been made, a plaintiff faces a simple choice: Go to trial or fold the case.
The next easiest number is a “nuisance” or “cost of defense” offer. Again, the options are simple, trial or quit, although quitting is slightly more palatable in this situation.
There are easy numbers at the other end of the spectrum too. If you have a case where you have concluded it’s worth $200,000 to $400,000 and you can settle it for $500,000, that’s not a hard call. (You might want to pause and reassess to make sure you have not missed something, however.)
It should be no shock to anyone that in the litigation/settlement negotiation process, most numbers are hard ones.
Take my example above: If you think a case is worth $200-400,000 and the defense draws the line at $150,000, that’s a hard number. Let’s say the fee is a third and the costs are $20,000. The client would net $80,000 – and that is not a small amount of money. At $200,000 the net would be a bit over $113,300.
In such circumstances, you must consider whether there is a reasonable probability of the client netting more than what the offer on the table would generate. You obviously must consider the added costs - and if you are talking about trial there is always a chance of losing. Delay is a factor too.
Irritated though you might be at the other side valuing the case so low, a cold objectivity is required. It’s not about my ego, it’s what is best for the client.
Such decisions are never easy.
If you go forward with trial, you will end either looking like a hero genius or a fool. Been there, done that on both ends.
If you take the money, suppressing the impulse to second guess yourself is hard.
Again, however, it’s not about the lawyer.
It’s about the client; it’s always about the client.
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