This is a question lawyers habitually get asked, and the answer isn’t so simple—and varies case to case. Whether to settle or push forward to trial is often a fluid question, the answer of which can change quickly, based on supporting facts (or lack thereof), witness/expert testimony, the timing of the lawsuit, and the client’s preferences, to name a few.
If you don’t already know, the litigation process (i.e., the filing of a lawsuit) can be long, costly, and inefficient. Often litigation takes years to resolve. Along the way, parties in a lawsuit will likely encounter multiple court appearances, paper discovery, depositions, experts, and motion practice—all of which take up time and cost money. It is only after paper discovery and depositions are completed and motion practice resolved that it is time for a trial—a judicial proceeding where opposing parties present their case before a judge and/or a jury. The main advantages of going to trial are the possibility of higher compensation (or no compensation if you are claiming that you are not liable, thus entitling the other side to no damages and the case being dismissed); vindication that you won your case in court and the other side is held accountable; and/or establishing precedent—that is, your case may impact and influence the outcomes of subsequent cases that involve similar circumstances.
As for settlement, an agreement to resolve a case between opposing parties can be completed at any time—this can be done prior to the start of a lawsuit, during a lawsuit, or on the eve of or during trial. Judges often encourage parties to partake in settlement discussions at the beginning of a case to see if a resolution can be reached. The primary benefit to a settlement is that there is a more predictable outcome because the parties are in control of what they are agreeing to settle. Settlements may also lead to faster resolution, reduced costs, and agreements regarding confidentiality.
However, like anything else, settlement has its drawbacks, the primary of which is that it often results in a reduced value as compared to what could be had if a case is won at trial. It was once explained to me that a good settlement is often when both parties are dissatisfied—and I don’t disagree with the old adage. To come to a settlement, opposing parties must generally give something up and settle for less than a full win. In a settlement, opposing sides are essentially coming to a middle ground, with an understanding that they could possibly do better or worse if they went to trial. Settlements also include language that disclaim any wrongdoing, which may or may not be discouraging depending on which side you are on.
What ultimately happens is up to the client, as the client has the final decision in what they want to do and whether to settle a matter for the terms being presented. It is the attorney’s responsibility to carefully explain all options that are on the table and the benefits and costs of each option.
This is not intended to be legal advice. You should contact an attorney to discuss your specific situation.
Gregory R. Picciano is Senior Counsel at J&G Law. He concentrates in civil and commercial litigation and personal injury law. He can be reached at 845-764-9656 or by email.