Legend has it that a judge once stated aloud, “the older a case gets the less valuable it becomes” (to the litigants). Over 25 years as a mediator has confirmed the adage to me. Standard wisdom tells us the earlier a case resolves, the less expensive it is for the litigant. Then, again years ago, a senior colleague told me, (paraphrase) ‘The law is the only career in which if lawyers do their jobs correctly, their income [at least from the current client] stops.’ Seems like a minor conflict, but who’s keeping track?
Judges and ADR researchers have studied this issue for years. The various conclusions boil down to the fact that when a case does not settle at mediation or through the pre-trial efforts of counsel, by the time judgment is entered, the clients are worse off than if they had accepted what they deemed a “bad deal” before trial. My email signature line includes the Lincoln quote: “Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser–in fees, expenses and waste of time.” (Abraham Lincoln—1850) Lincoln knew what he was talking about.
Lawyers have a duty to clients to give them all alternatives when interviewing for representation. If we do not warn the potential client of the real cost of litigation as opposed to a negotiated agreement; the likelihood of success at trial; and the (at least these days) the likely time delay, we are failing the client. I also suspect at the end of the case when the client does her own math, she will be unhappy about how much it cost her as opposed to a settlement early in the case.
I estimate that 4/5 mediations I conduct, one party alludes to the “principle” of his position. I try to explain how expensive principle can be, but it is not always effective convincing the dug-in litigant to try to resolve the case. Of course there are outliers winning disproportionate, unexpected judgments about which we read or hear many times. I suggest that those are one among many “normal” cases in our system. Lawyers must remember and communicate to their clients that the insistence they can “do better at trial,” can be really subjective. It is difficult, but necessary, to explain to a client that a $50,000 settlement, may yield a benefit for the individual more than a $150,000 or $zero judgment in the end.
We understand that the idea of settling (depending on if it is plaintiff or defendant) more or less than the client hopes for is difficult. In the case of institutional clients, it may just be a cost of doing business and the message to the opposition (mostly counsel) is more important, but as Neil de Grass Tyson says about science, “Whether one agrees with science or not, it is the truth.” In litigation, lawyers’ math is the truth.
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