Litigators

Never Stop Trying Your Case, Even When Settling

If everything is uncertain in litigation, things are even more uncertain in settlement. Always keep pushing your case to trial to get the best results for your clients.

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Years ago I was in one of those messy, way-too-many-lawyers-in-the-room settlement meetings when a lawyer — who I respect a lot, and who was on my side of the v. — responded to an adversary who asked about some upcoming depositions scheduled. My co-counsel said, “Look, we either negotiate or litigate, and I’m here to negotiate.”

He is so wrong.

Trial lawyers like those at my firm handle messes for our clients that have gotten to the point that some kind of serious fighting is needed. We are here to counsel, and in some fashion, provide value. But we cost a lot of money in almost all circumstances, and even a non-paying client has to devote time and energy to a case, so it’s understandable for a lawyer to advise a client, when meaningful settlement discussions begin, that we should focus on settlement, and not devote energy to the litigation.

It’s understandable, but it’s not in your client’s interest to do this, and for two key reasons: settlement is at least as uncertain as the rest of litigation, and you will do better (broadly defined) in settlement if you continue to push your case to trial or some decision that will resolve the matter in your favor.

First, the word “settlement” gets bandied about way too easily. It’s a nice concept. It doesn’t happen anywhere near as often as it should, or, at least, as early as it should. And simply using the word by itself doesn’t mean you’ll get to a settlement. Even when things are moving along — maybe you have a mediation scheduled, and maybe you even have a vaunted “settlement in principle” — don’t count on it until the settlement is truly final and the fat lady has sung. When I was a solo lawyer and had just set up my shop a million years ago, I learned that there was no final settlement until — no, not when the agreement is signed, nor even when the settlement stipulation is filed in court or with the arbitrator — some money hits someone’s bank account. Now that I’m more senior and my colleagues and I are fortunate enough to work on much more complex and expensive cases than I ever did as a solo lawyer, I have learned, again, that there is no settlement until some money hits someone’s bank account. That is when the fat lady has sung.

Until then, you do a disservice to your clients by not pushing the matter towards whatever resolution you want for your client. You not only will lose time if you put the case on hold for weeks or even months during settlement, you will lose drive. Battle fatigue in litigation can happen to anyone — anyone, no matter how sophisticated, or well resourced, or even expert (by the latter I mean a general counsel whose job it might be to manage litigation; she can get sick of a case, too). If you put your case on hold during settlement discussions and such discussions fall through you will lose valuable focus and time. It’s worth the legal fees. Keep pushing the case forward.

Uncertainty of outcome is not the only reason to keep litigating while negotiating. A second reason is that you simply will do better in settlement. Once you get out of your trial focus you can’t help but hope for settlement. Don’t hope for settlement. Plan for battle. It will keep you focused in your settlement discussions, help you advocate better for your client, and — more importantly — make you more comfortable if you have to walk away from settlement. It’s a lie that you can walk away from any settlement. Sometimes any resolution and finality, even on bad terms, is the best decision. But that is often not the case. If you keep preparing for trial you will be in a better position to walk away from your settlement, and then proceed on to trial.

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Take reasonable opportunities to settle your case. But never stop pushing your case forward to trial.

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 [email protected].

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