Most Cases Settle. Should That Affect Your Thinking?

Maybe outside counsel, and clients, and the judicial system itself, should begin to acknowledge what everyone knows to be true.

We’re just as silly as the next guy.

A big case comes in the door.  We think about retaining counsel.  We ask hard questions about who will try the case:  “How many jury trials have you handled?  To verdict?  In which you were lead counsel?  How many did you win?  How many did you lose?  What are the names of some clients who can serve as references?”

We ask hard questions about the other lawyers who will sit at counsel table:  “This is a racially mixed jury pool.  We don’t want three old white males trying our case.  What woman will sit at counsel table?  What’s her trial experience?  What racial diversity can you add?  What’s that person’s trial experience?”

Yeah, we’re tough.

And then 97 percent of all cases settle.

So what was that all about?

Maybe outside counsel, and clients, and the judicial system itself, should begin to acknowledge what everyone knows to be true:  Cases don’t go to trial.

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What does that mean for outside counsel?

Don’t say, “I’m saving all the impeachment for trial.  I don’t want the witness to know what’s coming, so I’m not going to show my hand during the deposition.”

If all cases settle, that’s foolish advice.  Use the impeachment (or at least most of the impeachment) during the deposition.  Drive down the settlement value of the case.  We know the case is going to settle, so don’t plan on trial.  Plan on reducing what the client must pay for the case.

(I suppose this would also change the sales pitch that many law firms make.  Now, firms proudly boast:  “We try cases!  So we know what it takes to get cases ready for trial.  We treat every case like one that will be tried.”  In my future world, counsel will proclaim:  “We never try cases!  But neither does anyone else.  So we minimize the value of the case, and then we settle it for you.  We treat every case like one that will be settled.”  It’s not quite as impassioned as the first sales pitch, but, sadly, it’s closer to the truth.)

What does the likelihood of settlement mean for the client?

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Why cross-examine potential counsel about trial skills that will never be used?  Ask the relevant questions:  “How many of these cases have you processed?  Have you handled any through summary judgment?  How many have you won on motion?  At what stage do you tend to settle — early or late?”  Ask the probing questions; find out what matters.

Finally, what does the likelihood of settlement mean for the judicial system?

If cases are never tried, then the right to appeal after judgment is meaningless.  Without trials, there are very few appeals after judgment.

Thus, if you want parties to have a meaningful right to appeal, and if you want to write decisions that give later litigants useful advice about their cases, you’ll have to change the rules governing interlocutory appeals.  If there are no appeals after non-existent trials, then think about the pretrial questions that matter and the issues that will govern future cases.  Craft rules that permit interlocutory appeals of those issues.

It’s good sport to deplore the absence of trials and lament how things used to be.

But it would be better to acknowledge today’s state of affairs and start figuring out how to improve it.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.