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Bill McMurrey
Former DOJ-Trial Attorney

Lynette Byrd
Former Assistant
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When Should You Settle Your Case And When Should You Go To Trial?

Categories: Criminal Law & Process

settle or trial litigation

Civil Litigation — Reputable Representation

One of the most common questions asked by civil litigation clients is how to determine when they should settle a case and when they should, instead, see the dispute through all the way to trial. Of course, every case is different, but there are some overarching issues to consider when making this determination for yourself or your company.

First, trials cost money.  When you are deciding whether to keep litigating or try to settle, ask your attorney what the cost of taking the case to trial is likely to be.  Court reporters, witness fees, and of course your attorney’s own fees, can quickly add up to be more than the case is likely to recover even if you are successful.  Second, trials are public events.  Win or lose, the result will be public and could result in negative publicity.  Also, the amount of any judgment will be public record; if you lose, the public will know that and it may be reported in the media.  Third, trials are uncertain propositions.  A settlement provides you with closure and certainty; it is impossible for even the best lawyer to predict with any probability what a judge will do, let alone a jury.  Juries are notorious for deciding cases based upon factors that no one considered prior to the trial.  Fourth, the other side may not be able to pay a judgment even if you win one.  Or, they may make collection of that judgment so difficult that you end up spending thousands of dollars more in attorney’s fees to collect on a case you already won!  If any of these situations ring true in your case, settlement is probably the right choice.

That said, going to trial may be the right choice when you want to make a point; are seeking to change public perception or the law for your jurisdiction; or need to show other potential plaintiffs that you are not afraid to go to trial and will not simply pay out money you do not owe.  Too, your opposing party or their attorney may not want to engage in settlement discussions, or their expectations may so unreasonable that it ends up making no financial sense for you to reach a settlement with them.  In these circumstances, it makes more sense to see your case through to trial and let the justice system decide who wins and who loses.

Three examples will help to illustrate these scenarios:  a dispute alleging wrongful termination in violation of ant-discrimination statutes, a case involving a partnership dispute and removal of one partner from the business, and a case in which your company is sued by a person who claims they slipped and fell on the premises.

First, let’s assume your company has fired an employee for chronic tardiness and unexcused absenteeism, but that the employee responded by filing a lawsuit for racial discrimination.  Assuming you have properly documented the employee’s absences from work, and assuming other people of other races were treated similarly in terms of discipline for missing time at work, this is the type of case where settlement is unlikely to make sense for you.  By settling, even though the amount would be confidential, other employees may see your company as an “easy mark” for discrimination lawsuits if they are not treated as they feel they should be.  In fact, though, you may not even need to try this case.  Discrimination lawsuits are often won on motions to dismiss or motions for summary judgment if the facts are as clear as we have outlined here.

Conversely, let’s assume you were partners in a small company with another person and the remainder of the partnership has decided to vote out this person.  A lawsuit is filed in which both the now ex-partner and the company blame each other for poor business decisions, wrongful management strategies, and financial shenanigans.  At first glance, this might seem like an acrimonious dispute that should go to trial.  But remember that trials are public affairs.  Your business’s financials, practices, and maybe even your customers’ names or trade secrets could be revealed at trial.  Also, even if you win, you may find it difficult to collect a judgment from this individual, who might choose to hide assets or even file bankruptcy rather than pay a partnership that he believes treated him unfairly. In this case, it makes more sense for both parties to try to explore settlement options and achieve closure sooner rather than later.

Finally, what about a case in which you own a small grocery store and a customer claims they slipped on a wet spot on the floor, fell, and hurt themselves? Although your insurance company will certainly weigh in, if you had no knowledge of any such wet spot, were not notified at the time, and/or no one else saw or slipped on the “spot,” you may be facing a con artist.  Through discovery, your attorneys should be able to learn whether this plaintiff has brought other lawsuits in the past.  Without some proof that your company was responsible or some actual evidence that the plaintiff really suffered an injury on your premises, this is the type of case you might choose to take to trial.

In some instances, it makes the most sense to pursue settlement options and a hardline trial strategy simultaneously.  On occasion, businesses will choose to hire trial counsel as well as a separate attorney to serve as settlement counsel.  By doing so, the original attorney hired to try the case can focus on continuing to be aggressive and competitive, while the settlement counsel can strike a more conciliatory and neutral tone with opposing lawyers.  However, while this practice is a growing trend, we believe it is still possible for a good attorney to make it clear that trial is a real option and a real threat while still leaving the door open for negotiations.  Most attorneys understand how the game is played, and most courts require parties to engage in settlement negotiations or mediation before arriving to trial.  It is important to engage in such discussions in good faith in order to comply with the judge’s order or local rules, even if the case ultimately goes to trial.

In every litigation, the most important choice you will make is your choice of attorney.  Be sure that your attorney has trial experience and is not afraid of the courtroom, but also be sure that you do not choose an attorney who is too hotheaded to see when settlement is the best choice.  If you own a business or are a professional, these types of lawsuits are not personal, but ultimately become business decisions. Your lawyer should explain all of the options and then help you select the one that makes the most business and financial sense for you and your company.

Settle Your Case Or Go To Trial? Call For A Free Consultation With Our Skilled Lawyers

If you are involved in civil litigation and need advice on settlement or trial strategies, contact the experienced and knowledgeable attorneys at Oberheiden, P.C. to discuss the strategy that makes the most business sense for you. Get a free and confidential consultation and benefit from talking to the former federal and state prosecutors and skilled litigators of Oberheiden, P.C. to assess your case. We are available to talk to you at your convenience.

Oberheiden, P.C.
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Who Will Handle Your Case

When you hire us, you will not work with paralegals or junior lawyers. Each lawyer in our Healthcare Practice Group has handled at least one hundred (100) matters in the healthcare industry. So, when you call, you can expect a lawyer that immediately connects with your concerns and who brings in a wealth of experience and competence. For example, you need someone like Lynette S. Byrd, a former federal prosecutor in healthcare matters, who recently left the government and who is now sharing the valuable insights she gained as a healthcare prosecutor with our clients.

Bill C. McMurrey

Bill C.
McMURREY

Dr. Nick Oberheiden

Dr. Nick
OBERHEIDEN

Lynette S. Byrd

Lynette S.
BYRD

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