Set your course: trial or settlement?

The biggest reason I have failed to settle more cases in my career is me. I am the big problem. Why? Pride, insecurity, overconfidence, fear, too much money, too little money ... the list goes on and on.

I like to try a case alone, but I don't trust myself to settle a case alone. I lose myself in my feelings about the client, the facts, the defense lawyer, and my ego. I need to rely on others--especially nonlawyers to help me assess whether a case should be settled. I often talk about my cases with people I meet in my community; I know I won't be able to convince a jury to find for my client if I can't convince the guy standing next to me in line at Starbucks.

These impromptu focus groups have taught me that in many cases, to reach a good settlement, it has to be your destination. Some lawyers say it's an error to prepare your case for settlement and not for trial. I think it's just the opposite: You have to decide early on, Is this a case I want to settle, or to try?

The answer is always easy. It depends on what is in the client's best interest. Almost always, it's settling, rather than taking a chance on a jury, judge, witness, lawyer, the law itself, and all the stars aligning in the right place at the right time. It's not spending a week or two biting your nails in the pressure cooker of a courtroom.

I somehow mistakenly believed that, to become a great trial lawyer, I had to try all my cases to verdict. A colleague once told me, over a steak dinner in the middle of Wyoming, that I should try harder to be a great settlement lawyer than to be a great trial lawyer. At the time, I did not fully appreciate what he meant. But now--having tried and lost more trials with settlement offers pending than I want to admit--I understand.

Do not get in the way of the deal. If you are going to settle the case, give the defense lawyer all the tools he or she needs to get the case settled. If you uncover a good witness or a new medical finding, let the other side see it. Most defense lawyers would rather settle big than let you beat them big in court and risk losing their client. For us, it is usually one client's case at a time. For them, it could be hundreds of cases with the same client. If they lose that client, they could lose their entire practice.

I used to think I could "fool" the defense lawyer into underestimating me and my case. It was never too hard to make them think that I am disorganized and my practice chaotic. Once trial came, however, I would show up prepared and ferocious. All of that seems good--if you have the right client, judge, and jury. But if just one element is missing, even Clarence Darrow could not win the case.

The defense lawyer may work on a sliding fee scale, receiving a flat fee until mediation, then another fee up to and including trial. If you sense that the defense lawyer is doing the bare minimum to get the case to mediation, conserve your energy, too. It might be easier to get a case settled if you have not crisscrossed the country and spent thousands of dollars on depositions, hotels, and airfare. There is nothing worse than trying to settle a case when your costs exceed the amount the client ultimately receives.

I also once thought that the defense lawyer had to be my mortal enemy. But I now find that if I can befriend the lawyer (some are, in fact, tolerable), the case may get resolved more favorably for my client. A colleague of mine used to take defense counsel or insurance adjusters out for lunch, drinks, or golf. At first, I thought he was a traitor to the team. But now I see the method to his madness: The objective is to get the case settled. And it works.

Now, when a defense lawyer asks me for a continuance in order to mediate the case more effectively (assuming that it is not merely to waste time), I give it. I let him or her gather more information or take another deposition, leaving enough time for my opponent to convey the information to the adjuster and for the adjuster to obtain authority to settle for a higher figure.

Finally, don't be ashamed or regret that the case settled. Even if the amount is large, most of us think that if we had gone to a jury we might have been able to get more. But had we gone to a jury we might have gotten less or, sadly, nothing. Remember the destination.

Spencer Aronfeld practices law in Coral Gables, Florida.