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Settlement Blues

August 18, 2015


One of the most difficult tasks that a lawyer often has to do is to take his or her own advice.  I regularly tell my clients that we need to evaluate the value on cases by removing emotion from the equation and simply looking at the exposure at stake given all the potential outcomes.


So, when we do reach a settlement, I should feel a sense of accomplishment.  I should be happy about it.  I should realize that I saved my client money by settling the case.  But honestly, on many occasions, I am not especially happy about it.  There are a number of reasons that settlement lacks the satisfaction we often seek on cases.  It feels much better to litigate a case to conclusion and win.   Lawyers are generally by their nature competitive people.  We don’t like ties.  We don’t like close seconds.  We like wins.


This alone makes settlements an unpleasant pill to swallow as a lawyer.  But sometimes, the claimant who is the opponent in the case is for whatever reason (biased or not) is particularly unlikeable.  Perhaps you “know” that the claimant is lying.  Perhaps you can even prove it.  Maybe she has painted your client in  an  unflattering light through her testimony.  Maybe you have perceived that the claimant’s attorney was too rough on your own client.   Any of these reasons can cause an attorney to take the case “personally” and have as strong emotions about the case as any of the parties.


However, at the end of the day, we, as lawyers,  have to put that emotion aside.  My job as an attorney is to zealously represent my clients’ interests.  And maybe my favorite way to do that is to litigate a case to conclusion.  However, I know that what would like to do is totally irrelevant.  I would be remiss if I did not spell out for my clients what the potential outcome of the cases are and what the exposure is under those circumstances.  Many times, when reviewing the potential outcomes, the parties all agree that settlement is the best option.  When that is the case, we negotiate the case and proceed with the compromise and release hearing.    Sometimes we have to just be satisfied that we closed a file that the client wanted to close. 


On other occasions, though, there is a bigger picture at stake and the client wants to go full speed ahead with litigation.  One of my favorite victories was over a closed period of 4 weeks of disability!  In that case, the Employer believed that much more was  at stake than the few thousand dollars at risk.  The Employer wanted to send a message that they would not settle cases which they viewed to be fraudulent. 


It is a critical decision to decide whether or not to settle a case and a developed skill to know when the time is right for settlement.  We will be discussing all of the factors that go into valuing a case and identifying the right time for settlement at our upcoming fall seminars.


Until then, I will go prepare the settlement documents on the file sitting in front of me on my desk... and try not to scowl too much.  

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