Originally published by Rob Radcliff.
We know that most cases are resolved before they ever see a jury or judge at trial. Some go the way of summary judgment. Other go the way of settlement. After attorneys’ fees and case related fatigue parties eventually get to a position where continued litigation no longer makes sense. Most companies and others know this, but sometimes the pain of litigation is necessary to get one or both of the parties to a dispute to a point where the case can be resolved.
So how do we avoid the litigation super highway? A few thoughts:
- It can happen, but a plaintiff/defendant usually doesn’t get everything they want as part of a case. Never “fall in love” with the strength of your case. It’s difficult, but you must maintain some objectivity, which hopefully your counsel will provide.
- A settlement usually means you’re giving up something and so is the other side. Parties don’t walk away from a settlement getting everything they wanted.
- In cases where you are paying a lawyer on an hourly basis, there is an economic disincentive for the lawyer to settle the case. Ethically, this shouldn’t be an issue as the lawyer owes a fiduciary duty to put the interest of the client above their own, but it is something to keep in perspective.
- No matter what your lawyer tells you, the litigation cost will be more than anticipated.
- There is a cost to litigation beyond attorneys’ fees. Those involved in the dispute are pulled away from their day to day tasks and distracted. Litigation, which may involve depositions, can be extremely stressful and unless you’re a masochist is an unpleasant experience.
These are just a few things to consider as you venture into a lawsuit or arbitration. Many times there is no choice, but if the opportunity presents itself to exit the litigation process on acceptable terms, it has to be considered. Force your lawyer to give you an up front candid evaluation of the case and an estimate of costs. The party on the other side is usually considering the same issues and an early mediation or settlement discussions might be appropriate. At a certain point the litigation takes on a life of itself, avoid that situation.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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