Small Law Firms

Lawyers Should Sometimes Work Cases Up Less If They Are Going to Settle

In many instances, working a case up can actually hurt a party’s settlement position.

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lawyers leaving court walking out of courthouse after trialLawyers sometimes have a knee-jerk reaction to do everything they can to work up a case and strengthen a client’s position. Attorneys might fear the wrath of a client if they find out a lawyer could have done more, and lawyers may want to overkill a matter to ensure that no one can ever second guess their work. However, for some matters, lawyers can best serve their clients by not working a case up too much. If a case is almost guaranteed to settle, it usually makes sense to save money to protect the bottom line of a client.

Earlier in my career, I handled an extremely typical lawsuit that involved a few other attorneys who represented the various other parties. Earlier on in the matter, the attorneys understood among themselves that this case was virtually guaranteed to settle. All of the settlement offers and demands were very reasonable and were well within insurance limits. The attorneys just wanted to do some discovery so that they could evaluate the claims and pass helpful information along to their counterparts.

However, the case took longer than anyone expected, mostly because one of the attorneys decided to go overboard. That party hired multiple experts that could be used in the event the case went to trial. The experts also provided detailed reports, which would presumably be useful if the case was headed to the summary judgment stage. The other attorneys were also confused as to why the party would spend so much money when the matter was ripe for settlement.

As predicted, before the any summary judgment motions were filed, and surely before trial was on the horizon, the case settled. The settlement was extremely painless and mostly involved the parties engaging in a few phone calls among themselves. Since the matter settled, all of the work that this party and its counsel performed preparing the case for trial and summary judgment was worthless. The total cost of all of this work could have easily been tens of thousands of dollars between the fees paid to the experts and the time it took attorneys to coordinate with the experts and prepare filings related to the experts.

Some people think that working a case up can help with a party’s settlement position so that it almost always makes sense to work a case up even it is headed to settlement talks. It is true that, sometimes, parties will want to settle a case since they do not want to take steps which will counter the work that another party to a case already performed. However, in many instances, working a case up can actually hurt a party’s settlement position and make it more difficult for a matter to resolve without judicial intervention.

For instance, I once had a case in which the parties believed that the matter was headed to an easy settlement, but then one of the parties decided to work the case up. The other party hired an expert to support a line of reasoning related to the case, and that put pressure on other parties to hire experts. Since the other parties did not want to be without experts, the other parties hired their own experts, which increased the cost of the litigation greatly.

When it came time to settle the matter, the parties conveyed different settlement numbers than earlier since they had spent a lot of money on experts. Each party wanted to bake the cost of the experts into their settlement figures, and this made it less likely that the case would settle. Eventually, the case did settle, but everyone involved would have saved money and cut a better deal if they hadn’t work the case up.

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In practice, it is very difficult to defend doing less legal work so that a matter can have the best chance possible at resolving. However, in matters that lawyers are confident will settle, it might make sense to work the case up less to save a client money and allow parties to make their best offers when it comes to settlement figures.

Rothman Larger HeadshotJordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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