What you need to know:
- Your lawyer should evaluate all the evidence first before rushing to judgment about settlement
- You have the right to accept or deny any settlement offer
- Do not hire a lawyer who is not willing to go to court over your case
- Be weary of any lawyer who pressures you into taking a settlement
- Be weary of any lawyer who is not interested in interviewing witnesses
The Difference between Settlement Lawyers and Trial Lawyers
I am a personal injury trial lawyer in Oklahoma City. This blog post explains my own personal philosophy about accepting new cases and how I view my obligations to the clients who hire me. I will first explain what I have observed as the wrong approach and then explain my approach.
The Current Mainstream Approach: Every Case is just a Settlement Possibility
At some point in time, the concept of a lawsuit settlement changed from a mere compromise – each side making concessions – to the absolute goal of every case.
When a person walks in the door and presents a case, the thought should not be, “How much will they settle this for?”
Any of the following assessments mean problems down the road:
- “I think the other side might pay something, therefore let’s take the case.”
- “Surely they’ll pay at least a little bit, just to make it go away.”
- “Oh, this is a good case, we should be able to get a quick settlement!”
- “Liability is clear, this settlement should be easy.”
I don’t evaluate cases this way. And you shouldn’t either, whether you are the client or the lawyer.
Why this Approach is Wrong
When I take a case, the only thing I care about is if I can convince a dozen strangers that the Defendant needs to pay my client money. If I present the case at trial, how would a complete stranger would react to it. Positively? Negatively?
I’m not even thinking about settlement. Settlement is just something that can happen once we’ve got the case off the ground and demonstrated it has merit. If the defense offers some money, my client gets to decide whether to take it, demand more, or keep pushing forward to trial.
But I’ve come to realize that not everyone thinks that way. In fact, many lawyers don’t even perceive their cases as real live people with real problems and the need for justice. Instead, most lawyers just see the files on their desk as representing various settlement possibilities.
What is a settlement?
If you really think about what a settlement is, it’s a concession. It’s actually a mild form of surrender.
Are all settlements bad? No!
Not at all! If fact, settlement can be a great thing, especially if you get 100% of what you want, or at least very close to it.
But you must not evaluate a case based on whether or not it should settle. You should evaluate a case based on its merit, and available evidence and witnesses. Only after you’ve assembled the case for trial, then you reach out and discuss settlement.
But if settlement is the first and only goal, then we have a problem.
The problem with the mindset: Settlement is the only Goal
Here is the problem: when the only goal is settlement, you don’t really believe in your case. And if you don’t even believe in your case, why should the defendant?
Because of the misinformation of too many lawyers that have never tried an injury case, potential clients think that every case is a simple process of obtaining a “settlement.” And it’s completely understandable how this half-truth has become wide spread.
The Problem with most lawyers: Few actually know how to try a case
For many years now, the amount of jury trials has steadily declined, and for various reasons. Insurance companies now know that certain cases bring big verdicts, and therefore have more reason to settle those cases, based on historical values (but at a discount rate to avoid trial).
But at the same time, fewer lawyers have trial experience, and therefore, don’t really know what the true value of a case would be at trial. Their concept of settlement – taking a little less to save time and effort – is flawed because their entire career is based off settlements, not verdicts. That means most lawyers perceive cases based on their experience of what insurance adjusters will offer, not what juries will award.
This presents two problems:
- They may believe there is “settlement value” to a case that lacks merit; or
- They may pressure the client to accept a low-ball offer in a good case that should be tried.
See how it goes both ways? Settlement lawyers take bad cases and try to get something, anything, not realizing that no sane jury would award money for that type of case.
And with good cases, they don’t get nearly enough, because they don’t have the courage to rally the tribe and ask the jury for more.
Because they’re cranking out small or mediocre settlements left and right, these lawyers can’t really tell a good case from a bad one.
Exposing Corporate Wrongdoing
The biggest problem for settlement lawyers is when they have a client with a good case that won’t accept a settlement, i.e. an amount less than she deserves in exchange for not having to go to court and prove her case to a bunch of strangers.
Sometimes a client doesn’t mind going to court, especially when a large corporate defendant has done something really bad. In fact the client may look forward to outing the truth about what happened and letting the public know. These clients actually care less about the difference in money between a verdict and settlement, and more about exposing the dirty little secret that the defendant is trying to sweep under the rug in the form of a confidential settlement.
But alas, what is the settlement lawyer to do with such a client?
The Worst Thing a Lawyer can do: Pressuring a Client to accept a settlement
Whether large or small, a lawyer should not force a client to accept a settlement offer. Persuade, yes. Pressure, no.
A lawyer should advise the client of the possibilities of recovering zero at trial, and explain the favorable evidence and what evidence the defense has that mitigates the damage. Then let the client decide. A lawyer may even offer to reduce her fee, thereby giving the client a greater portion of the settlement. But ultimately, the client should be free to decide without feeling pressured.
If the client sincerely desires trial (not just a higher settlement), then the lawyer should do whatever necessary to prepare for trial, including retaining additional trial counsel to assist in trying the case.
But many lawyers will opt for a less ethical option: many lawyers will simply withdraw from the case while claiming a lien on it, so that if a real trial lawyer obtains a verdict, they can claim some right to a portion of it (you know, for all that hard work they did in getting the initial settlement offer on the table).
Let me offer a different approach to both cases and clients.
My approach to New Cases and Clients
A lawyer is first and foremost, an advocate. We are not merely acting on another’s behalf; we are zealously advocating for them. The trial lawyer is the voice of the client’s cause.
Given the important role, why should a lawyer ever take a case they are not fully committed to promoting, trying, and winning?
Time to get personal
When I first meet a client, I am thinking about whether I would enjoy spending the next couple years working with this person. If not, then this case is not for me and that is fine; but I should politely decline the case.
As the client, you should be evaluating your prospective attorney the same way. Do you feel like you can trust this person to advise you about what is in your best interest? Do you feel like you can count on this lawyer to do the hard work and not settle for the low ball offer when you know the case is worth more?
If you can see yourself working alongside this person, then move along to the next step.
Goals and Objectives
Do I agree with the client’s position? Do I agree with their goals? Why or why not? All of this must be discussed. If we are on the same page, great. If not, we must discuss further.
Ultimately, the lawyer and client must agree on the goals and objectives of the case. Yes, this involves specific amounts of money and whether lesser settlements are acceptable or if the case must be tried.
Willingness to go to trial = being sincere about our case
If the client does not want a trial at all, a lawyer cannot move on until this subject has been exhausted. It is okay for a client to be afraid of courtrooms and to desire to avoid ever stepping into one. But if the client is not willing to try the case, we have a problem.
I will not accept a case if the client is not willing to go to trial. Why? Because I refuse to bluff.
I will not file a lawsuit, seeking relief from a court of law when in fact my client has no intention of actually seeking such relief within the court. There are many other lawyers who are willing to file a lawsuit with no intention of ever going to trial. I view this as the equivalent of making an empty threat. It is false bravado, and I will not partake in such insincerity.
I will respectfully decline a case if a client wishes only to fake a legal threat but is not willing to follow through with it.
Building the trial team: Witnesses
Next should be a discussion about the most important part of any case: the lay witnesses. Explain to the client that witnesses are the life blood of the case and how willing the client is to assisting with meeting witnesses or making such arrangements for those that are close to the client.
I am going to work hard for my clients, so I want clients who want to work hard with me to build a tribe that we can take with us to court. We cannot win this battle alone.
Accepting the Case: Team Work makes the Dream Work
If I have a client who is excited about all of the above, then I am very excited about this client, and I am eager to get to work.
And here’s the interesting truth: I am not thinking about settlement. I am thinking, “Yes! We can win this!”
Yet, these are the cases most likely to settle for large amounts. And when they don’t, we don’t care because we are ready for trial and ready to win!