Monday, January 7, 2013


When I first started trying employment discrimination cases, I tried a lot of them.  They were new and difficult to evaluate, plus defendants repeatedly denied they had done anything wrong.   Either the plaintiff"couldn't take a joke,"or "she was a nut" and nothing that bad happened or the plaintiff was a bad actor, bad employee, slut, liar or cheat. Quickly, I discovered that juries did not like these defenses.  I got few significant offers, and many good verdicts. Back then, I, and others in the legal community thought talking about settlement was a sign of weakness and the lawyer lacked "balls."   

Then there came a push for alternate dispute remedies, meaning either arbitrations or mediations.  While arbitrations suck, mediations started to make some sense.  I started exploring settlement at a much earlier point the parties were less dug in, less insulted by the depositions and litigation and more likely to want to go one with their lives. As litigation progresses for years and years, people get less patient and more angry.  Trials can be unavoidable, when you get offer or no legitimate offers.   Then going to trial is a much easier decision.

People say no one wins by going to trial.   That's not true. Sometimes people win and win a lot.   The purpose of settlement is to eliminate risk and if the offer is deminimus, why not take the risk?  That's how big verdicts happen. 

Lately, I make one attempt to settle a case early on in virtually every case if I can eliminate my client's stress and turmoil with a fair enough return.  Being a party to a lawsuit is no fun. It can be embarrassing , stressful, and inconvenient. The stress can be almost unbearable for parties.   If I can't reasonably settle the case early on, on I go with litigation.  My clients are brave and most of them can endure these rigors and sometimes cases never settle and the result  ends up being wonderful.  But there sure is risk involved.  I trust juries but it is hard to hand your future to strangers.  

Trials can be fun for lawyers.  I have had several fun trials. Unfortunately, it's the lawyers who have fun and very rarely the plaintiff, who has little control over what happens in Court. One thing we lawyers need to continually remind ourselves is the cases and the trials are not ours, they belong to our clients and our clients' best interest must always come before the lawyers' interest.   Always!


  1. "When I first trying employment discrimination cases" = opening paragraph I'm a fan, but please correct grammar or readers may not read the full statement.

  2. Hi Lynn, Everytime I watch CBS's new show 'Elementay', I think of you & our earlier misunderstanding. Perhaps, you thought I was being snarky when I spoke of Holmes' cocaine addiction. As you can see, if you've been watching this new show, I was not. Interesting, considering it was written in the 1890's. I identify with this character. Perhaps, you assumed that I was attacking you because you were the hero of 'MammyGate'. I was not. I campaigned against my brother's re-election. To me: Mark is just the monster I grew up with. We haven't spoken to each other since 1985 when he was having what I like to call a co-dependency attack. I thought about reaching out to you before, but now I have an extra reason. I've pasted a comment I made on TKC here for a backup as it were. I'm not asking you to do anything except to leave it here. I think that the comment is self-explanatory:

    P.S. to Anon 9:37

    Obviously, you're implying that you work for the Social Security Administration. If so, then you are being very unprofessional. If you try to use this blog to make trouble for me, it will be obvious that you are driven by personal animus & your relationship with my brother. This blog can be used against you, too. I notice that you're still being an anonymous pussy. I've been receiving disability benefits for twenty years, & I am now 58 years old. Social Security is not going to take away my benefits on your say so. This most you can do, is demand that my case be reviewed. Big deal. My vision is even worse than it was before. If I knew your name I would file a complaint against you.

    Thank you for your help & patience.
    Byron Funkhouser
    A fan.

    1. Byron:
      I do not remember our disagreement. Have you seen Sherlock, the British version, on PBS. It is quite good.

  3. Yes, I enjoy all things Sherlock Holmes. It was a post that you did on this show that I had commented on. I'm kind of glad you don't remember. That means that I didn't upset you as much as I thought I had. Take care, Lynne.