Boutique Law Firms, Litigators, Small Law Firms

Be Ready To Walk Away From Any Settlement

We get paid to fight for people, but often the litigants should settle -- but only on terms they can live with (if not love).

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We get paid to fight for people, but often the litigants should settle — but only on terms they can live with (if not love). And to do that means being ready to keep fighting.

Recently two of my colleagues were on trial and had gone so far as picking a jury when the judge asked the question many (but definitely not all) judges ask at this point: “Any way we can get rid of this?” In other words, now that you guys are really about to roll the dice, do you want to settle it?

To our surprise (though this often happens when you’re about to try a case, especially against adversaries who don’t try cases much), now that we were ready to try the case — and, as plaintiff’s counsel, had done most of the pre-trial work we needed to, and had picked a jury — our adversaries were more willing to discuss settlement than they ever had been, in a matter that had gone on for many, many months. With the judge’s assistance, within about a half hour we had a settlement in principle, with what is generally the key point in business disputes — money — agreed to.

Then, during settlement discussions, it all fell apart. The adversary was completely unreasonable, said that our client should simply “trust” him, and, frankly, acted suspiciously with regards to the agreement. We tried to come to a written agreement, but we could not recommend one that we knew our client could live with. Settlement fell through. The case is back on the trial calendar.

And that is how it should be. A settlement would have been excellent for our client, ending a years-long dispute. But beware once you get into settlement mode: it’s easy to lose your advocacy mentality and become instead an advocate for settlement. Sure — try to close the settlement. But not at all costs.

This is why you need to know before even entering settlement discussions what your client needs. Just today a court clerk told me that a settlement that makes sense is one where everyone is unhappy, but everyone can live with it. I agree. Do not give up on what your client absolutely needs. Do not let the desire to settle and end it all take over. One of my smarter clients says that in a settlement he likes for the adversary to feel like he has gotten whatever it is that he absolutely needs because then the settlement will stick. That’s a good point.

And you need to know that, and fight for that, as well with your own clients. When you have settled “in principle” or “preliminarily,” that’s good. But know what your client needs from the deal, and certainly be ready to walk away if you cannot get that. Settlements are great since they resolve the dispute with certainty and finality. Ensure your client can live with it forever.

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When you’re in a fight, a settlement may be exactly what your client needs. Simply keep in mind that you have to obtain not just a resolution, but a resolution your client needs. Otherwise, walk away.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at

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