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Ups and downs of settlement

I’m sure not every lawyer feels this way, but for me, most settlements prompt a wave of conflicting feelings. There are reasons to be happy about settlements:

  • The case is done.  It’s like crossing a big item off of the To-Do list.
  • Very few cases are perfect, and depending on how imperfect the case is, a settlement can be an emotional relief.
  • Money will be coming in the door.  It’s important for keeping the lights on.
  • Ideally, the client is happy about it.
There are also reasons to be unhappy about settlements:
  • Almost every settlement feels a little like giving up, even if it’s in the client’s best interests.
  • Particularly for circuit court cases being tried before a jury, a settlement deprives the lawyer of the chance to test and hone his skills.
  • In the pit of your stomach, you’ll always wonder if you would have done better going to trial.
  • Even clients sometimes experience “buyer’s remorse.”

It’s hard, but I try to remove myself as much as possible from the settlement decision. I give all of my clients the same disclaimer before discussing a settlement offer with them. We discuss that they could receive nothing or less than, equal to or more than the amount of the settlement offer. We discuss similar cases in similar jurisdictions. We discuss exactly how the settlement money would be distributed and exactly how much the client would receive after payment of all fees, legal expenses and medical bills.

I then give them my recommendation but I’m always careful to let them know that they can choose to accept it or not and I will happily follow instructions. I even tell them that I like going to trial, which is important so they don’t think they are putting me out by choosing trial over a settlement.

Some offers should not be accepted and some offers clearly should be accepted, but as the case gets closer to trial, the majority are in a gray area — reasonable people can disagree about what to do. The client needs to know that you will take care of him no matter what they choose.

So much of the settlement decision for clients rests with their financial security. If they are unemployed or missed a lot of time from work, they may opt for a lower settlement than the lawyer thinks is wise. Again — I give my recommendation but the choice belongs to the client. Even in the smaller district court cases, sometimes $5,000 right now is worth more than $8,000 six months from now.

I just had a big case resolve late last week. It means that I was able to spend the weekend at home instead of at the office furiously preparing for a Tuesday trial. I think my client made the right decision, but I still felt sad about it.  The cases that settle right before trial are the worst — by that point, you’ve devoted so much energy to the case that it will always feel disappointing.

On the plus side, though, I have a whole week free and unplanned — just what the doctor ordered one week before a beach vacation!