Contacting Barnes & Harrington Employment Law

Trial or Settlement?

When you are involved in a legal dispute, your first instinct may be to "take it all the way," or to say, "I don't care what it costs, I'm going to fight for my good name." Although it is natural to want to prove you are right, in litigation you need to make sure you come out ahead. Usually that does not mean taking your case all the way to trial. Statistics indicate that 98% of cases settle before trial. Settlement does not indicate you gave up, or that you were wrong; it simply reflects the reality of litigation: it is expensive and risky.

Each case must be thoroughly evaluated to calculate not only the liklihood of winning at trial, but also the cost of taking the case to trial. It would be an empty victory if you won at trial, but went broke getting there. It may not satisfy you emotionally because you weren't able to have your day in court and prove you were right, but when you are involved in litigation, you have to set aside your emotions and determine what the best result would be for you. Most often that will turn out to be a settlement.

I provide my clients with a litigation budget and my professional opinion of the liklihood we'll win the case if we go to trial. Usually, we have to aggressively prepare for trial, while welcoming a settlement if the opportunity presents itself. If the other side will not settle on acceptable terms, then we must be prepared to go to trial and prevail. However, anticipating settling and not being prepared for trial makes a settlement less likely and success at trial nearly impossible. Lawyers can sense unpreparedness and desparation in the opposing party.

Statistics show that most cases do not go all the way to trial. This is so, in part, because the courts encourage the parties to settle thoughout the course of the lawsuit. At each step of the way there are requirements for the parties to confer, either directly or through their lawyers, to attend settlement conferences, to arbitrate, and/or to mediate.

In fact, litigation is largely the process of convincing the other party to settle on favorable terms. In addition to encouragement from the courts to negotiate a settlement, contracts often include arbitration clauses, which require the parties to arbitrate disputes if they arise. The courts enforce these arbitration clauses as they would any other contract term. There are many ways to arbitrate, and generally arbitration is faster, cheaper, and more final than traditional litigation, because an appeal is rarely available. Arbitrations are not conducted before a jury or in a courtroom and can be a very informal proceeding. Nevertheless, they can be an effective and just method of resolving a dispute.

Mediation is a voluntary and very informal method of dispute resolution that lets the parties decide how to resolve their dispute. The mediator facilitates a discussion of ways to settle the dispute that work for the parties. Mediation has become almost routine in modern litigation, because it has been proven to be a relatively inexpensive and effective way to resolve a lawsuit early in the litigation process. The key is to have the right mediator for the case. There are many excellent mediators, but each one is not right for every case. Experienced litigation lawyers have the knowledge to select the right mediator for your dispute and to avoid ones who would not be effective for the unique facts or legal issues you face.

Don't shy away from settlement. Just be sure your lawyer approaches settlement from a position of strength.

Posted by: on: Jul 22, 2009 @ 03:34