August 2008 Archives

August 13, 2008

When to Accept Settlement

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A recent New York Times article addressed the age old plaintiff lawyer's dilemma, "Should I settle or should I sue." Generally this predicament boils down to an analysis of what the insurance company is offering and whether the client is likely to fair better before a jury. The article reports on a study lead by a consulting group that poured over numerous cases in which plaintiffs turned down a defendant's final offer and went to trial.

Among the study's findings; defendants were found to have done worse than the plaintiff's final offer only 24% of the time. Plaintiffs made the wrong choice 61% of the time, meaning they recovered less than what the defendants had last offered.

While it is difficult to apply such general statistics to any specific case, the article does suggest what most any experienced personal injury attorney already knows, that the jury system is becoming more and more risky.

Separate from its statistical analysis, the article also points out that an attorney's role is more than simply preparing a case for trial. Rather, an experienced attorney should provide their clients with advice to make the best decision regarding the direction of their case. Although clients may not wish to hear their lawyer advise them on the weaknesses of their case, it is nonetheless necessary.

While it is always the client's decision whether to proceed to trial, the analysis is not much different than how one would reason at a casino. The risks of proceeding may be known, but the excitement of the moment often times encourages people to risk money in the hand for a chance at more. A personal injury attorney must be able to accurately advise their clients on how to proceed, and after a decision has been made, support them thoroughly. At times this may mean preparing for settlement, or preparing for trial.

A personal injury lawyer must never allow their own aspirations to interfere with their client's logical goals. Similarly, just as at the casino, there are certainly instances, and cases, in which a lawyer must be prepared to double down and do everything physically possible to convince a jury to do what is right.