TO SETTLE OR NOT TO SETTLE, THAT IS THE QUESTION
By Clifford Gravett
Virtually everyone is familiar with what a legal trial is. If you’re lucky, this knowledge came from watching TV or movies with epic courtroom battles, complete with crying, table pounding, and courtroom celebration after the verdict. Naturally, films like these dramatize our legal system and viewers may come away thinking that if they have a legal dispute, they can simply go to court, have a short and thrilling trial, and justice will be done. All within a thirty-minute episode, commercial breaks included.
What Hollywood rarely focuses on when presenting a legal drama is what takes place between the time a lawsuit is filed and when the trial actually takes place. Everything that occurs during this period is called “litigation.” While a trial may last a few days to a few weeks, the litigation leading up to that trial could last several years. This process is expensive, frustrating, and can be very distasteful. For example, when you sue someone, they can file counter-claims against you, ask for copies of any and all documents they want, and can even make you answer any questions they want under oath, all before the actual trial. Finally, once all the documents have been exchanged and all the questions asked, the lawyers for both sides will file a long, expensive document (called a motion for summary judgment) seeking to convince the judge that the case shouldn’t even go to a trial because it’s so obvious that you will win or (from the other side’s lawyers) that you will lose.
At some point, your lawyer will probably come to you and talk about settlement. Why? First, trials are expensive. Second, the litigation process helps your lawyer and the other side’s lawyer determine the strengths and weaknesses of your case and their defenses and may make settlement attractive. If so, then a trial may not be necessary. Third, the parties can control the settlement process and the terms of a deal; at trial, either the judge (or even more terrifying) 12 people who couldn’t get out of jury duty decide your future. Finally, litigation and trials can be mentally and emotionally exhausting for you and your family and the outcome is not certain until the jury comes back from its deliberations. Settlement puts the unpleasantness of litigation behind you now rather than making you wait until trial. Your lawyer will have all of these factors in mind when he or she comes to you and recommends for (or against) settlement. Although you have the final say in accepting or rejecting a settlement, keep in mind that the Hollywood-style trial you had in mind when you started your case may not be the best way to resolve your case (and does not include the buttered popcorn).
While some matters are worth taking all the way to trial, for many matters settlement may be the best option. Your lawyer will be able to help you decide the answer to that question. Abraham Lincoln once said, “Discourage litigation. Persuade your neighbors to compromise whenever you can.” That is sage advice, and the resolution of disputes is frequently the best option. Although settlement may often be the best resolution of your case, only a competent attorney can help you decide when to settle and when to keep fighting and should you elect to keep fighting, you will need a competent attorney in your corner on the day of trial.
***Nothing in this post should be considered legal advice. You should always discuss your legal matters with a qualified attorney***