Thursday, September 19, 2013
When Is It Right to Go to Trial - Lawyers' Edition
I have been pondering this issue. Clients ask me what the value of a case is, and, after 30 years, I don't have a good answer. I think I am not framing the issue well. While no one knows what will happen in trial, I think decisions are impacted by time and fortitude. I sometimes talk about the fortitude, but give short shrift to the time issue.
Would most clients rather settle for $50,000 after three months, or would they rather try for $500,000 to much more, realizing the time for a trial and appeals have to be factored in? When we tried some cases in federal court, this process took as much as 7 years, (1) summary judgment: (2) appeal to 8th circuit where s.j. Is overturned, (3) trial with verdict, (4) appeal resulting in remittitur = 7 years. Now there is less chance in state court of summary judgment or remittitur and defendants offer more because of their greater risk. But, settling a case may be a disservice to the client experiencing PTSD or depression and struggling to feed his or her family.
These are rhetorical questions, since I much prefer to go to trial in good cases with low offers - less risk (but frankly more embarrassment if you lose). But, I don't know that in other cases I always present them in terms of time and risk. With better judges and laws in state court, maybe we should be going to trial more instead of less, tempted by higher offers. I know it's up to the client, but I may not be giving my clients the right criteria with which to make a decision. I haven't been to trial since June, 2011, and the case settled after a week of trial. 2012 was the first year since 1984 that I never even started a trial. There are some pretty heinous acts still occurring in the workforce. Surprisingly, the sexual harassment cases I have are as bad as the ones in the 1990's, as if some companies think sexual harassment policies need not be enforced.
Sometimes, lawyers tell me that, if a case goes to trial, there are no winners. I disagree. Sometimes a client deserves to be heard by a jury of his or her peers. If no one tested discrimination laws in trial, bosses would still be chasing their secretaries around their desks for a smooch and to cop a feel or worse. Settling a case may be right for one client, but not for all. Many parties deserve their day(s) in court.