As litigious as Americans can be, the vast majority of cases settle before going to court. How vast is that majority? Less than two percent of federal civil cases go to trial, a fivefold decrease from 50 years ago.
It's understandable that clients, and lawyers, would want to avoid trial. Trials are expensive, time consuming, unpredictable. But sometimes, they're also your best option.
Have We Entered a Post-Trial Era?
Federal civil trials can trace their lineage at least all the way back to the signing of the Magna Carta, 800 years ago. Yet, for all their pedigree, civil trials are a diminishing breed. In 1962, 11.5 percent of federal civil cases went to trial. In 2009, just 1.2 percent did. In some places, trails are virtually extinct. The four judges presiding over the N.D. Fla. saw just five trials in 2005 -- and trials don't seem to have rebounded in more recent years.
There are many reasons why settling has become the most common resolution. Discovery is expensive, as are trial attorneys, expert witnesses, and depositions. Now that so much communication is written in email or texts, it's easier to find damaging evidence. Settling allows information to be kept private, improves predictability, and often results in better outcomes. The clear lesson is that "when you sue, make a deal," according to The New York Times.
But has so much settling led to lawyers and clients to simply accept the easiest resolution, not the best?
When to Just Say No to Settlements
We'd love to give you 11 absolute examples of when to pursue trial over settlement, but of course, such decisions vary case to case. Some general rules govern when you should encourage a client not to settle, however. The first and most obvious consideration should be the strength of the case. Strong evidence and positive jury verdicts in similar cases should definitely agitate against settling. The same too for settlement offers that are manifestly unjust.
Similarly, you may consider discouraging settlements when encountering a serial litigant. Patent trolls are a fitting example here. Often, holders of questionable patents will file specious litigation hoping to get a quick settlement -- and often succeeding. Being the party that resists can show that your client isn't an easy target.
Helping your client decide whether to settle or not involves a complex balancing of risk and potential reward. But that process cannot be avoided, so make sure that settlement is just an option, not your default resolution.