At some point during your case in litigation, you, as the client, are likely to be confronted with a question: should I settle?
This question can never be taken lightly and almost always brings to the surface many unresolved feelings about the wrongs you suffered that gave rise to the case in the first instance. It is likely, moreover, that since the underlying wrong has occurred, the legal system has imposed its own burdens and stresses. Even Shakespeare’s Hamlet, in his soliloquy, recognized “th’ oppressor’s wrong … the law’s delay,” as central to the human experience. It is impossible to fully appreciate the anxiety, stress, and derangement of normal sensibility engendered by the legal process without experiencing it oneself. For too many, the prolongation of legal process results in a new “normal,” but one bereft of lightheartedness and joys and marked by worry and obsession. For those whose personal philosophy anticipates resolution of matters “on the merits,” the process of litigation can not only be a rude awakening, but do positive violence to a core value.
As to this last remark on personal philosophy, I can speak from experience because I hold the belief that, although it cannot be shown that “life is fair,” fairness is an important force in the world of human events and that we should act as though issues can be resolved fairly. I suppose the death of innocents, mass starvation, children’s afflictions, famine, disease, and natural disasters have weaned me from the idea that “life is fair.” It is hard to accept with equanimity the death of thousands of children daily simply because they are too poor to live – and I, for one, cannot do so. Elie Wiesel in Night describes his loss of faith in the face of the horrors of the Holocaust. Does this mean that we can hope for no justice at all? No, it does not. My experience with our system of justice persuades me that some measure of justice is attainable, but that “perfect justice” in our system is necessarily diluted and compromised by many factors. I have faith in the integrity of our judges. I have never seen what I knew to be a corrupt decision, although all people, judges and juries alike, have their predispositions and prejudgments. I have, however, seen many decisions, by judges and juries, that were compromised by lack of comprehension, lack of resources, lack of diligence, or, perhaps, lack of nerve, even where they were not compromised by poor presentation of incomplete evidence. This brief statement of personal philosophy is not irrelevant to the question of settlement, because settlement necessarily entails delegating decision-making to another in the hope that justice can be done. If we conclude that the quality of justice available from the “system” is impaired, we cannot rest easy with the decision to leave it to the jury and we may wish to wrest from the system what justice can be had, although degraded far below the justice of our aspirations.
For a substantial number of litigants – and I speak from thirty-five years of experience as a trial lawyer – the experience of litigation is one of the most demanding and challenging life presents. I have represented strong, capable people who handled stresses in their normal lives with relative ease, who literally “fell apart” when faced with litigation. This is not limited to personal injury claimants or plaintiffs, but also defendants. How you have adapted to litigation may affect how you process the question of settlement.
For some, the prospect of settlement is so alluring and the thought of further prolonging litigation is so distasteful that almost any settlement will suffice. Many such clients abandon the notion that justice of any sort can be achieved and seek to end the conflict at all costs. They will be well-served by an attorney who can make sure they get as much “justice” as can be had with as little disruption of their lives as possible. Other clients, having adapted to the new “normal” of litigation, find the idea of settlement distasteful or even dishonorable and, losing sight that litigation is a means to an end (that end being some measure of justice), find it difficult to bring an end to the conflict, even when victory is at hand. For these clients, it will be important for the attorney to provide them with insights into the legal process so they can properly assess the costs and benefits of continued litigation as opposed to settlement.
This second group of clients pose special challenges to themselves and their counsel. It is almost as if, being rescued from a burning house, they wish to run back in to salvage some personal effects that are already lost. They have adapted to a “war footing” and have lost sight of the limitations of the system to produce perfect justice, preferring instead contention for its own sake. Abraham Lincoln once said: “No man who is resolved to make the most of himself can spare time for personal contention …., Better give your path to a dog, than be bitten by him in contesting for the right, not even killing the dog, will cure the bite.” Dale Carnegie quotes the Boston Transcript for this bit of verse:
Here lies the body of William Jay,
Who died maintaining his right of way –
He was right, dead right, as he sped along,
But he’s just as dead as if he were wrong.
In considering settlement the choice is never between “perfect justice” and the “settlement.” The choice is, rather, between the uncertain and imperfect justice of the courthouse and the available settlement. Let me use two metaphors that may suggest the quandary for the client considering a settlement: the “Let’s Make a Deal” metaphor and the “waiting for a bus in the rain” metaphor.
You may, perhaps, remember a television game show called: “Let’s Make a Deal.” At some point, one of the audience members may be given a choice: “the cash in the hand” as the host gives them more and more cash or “the box on the stage,” often the choice of a prize concealed on the stage behind one of three curtains, or behind “boxes” onstage. The audience member is asked to choose between, say, $500 (which today might be the equivalent of $1,000) or the opportunity to choose the unknown prize on stage. Behind two of the three curtains are likely to be booby prizes (e.g live animals, fake trip, giant article of clothing, large amounts of food, a unicycle that can only be ridden on stilts, etc.) and the third “a fabulous all-expense paid trip to Paris” or other prize valued at several thousand dollars. The decision is likely to be governed by how “risk-averse” the contestant is. Amid cheers of the crowd urging the contestant to forego the certain cash for the risk (they lose nothing), some contestants are happy with the cash, some take the risk. The cash has much to recommend itself. The contestants have had an entertaining experience in New York City, have been on TV for all their friends at home to see, and can walk away with enough cash to offset the costs of their vacation, to have several extravagant evenings out, and are definitely “winners.” They may have the nagging feeling that they could have done better, but they made a sober choice that puts them ahead. Others pick one of the three curtains or even one of two curtains and either are good sports about the booby prize or they are delighted with the fabulous prize.
Going to trial, like choosing the “box” or “curtain” on stage, has irreducible risks and expenses. These risks and expenses are certain. Choosing trial is invariably more prolonged, expensive and risky. There are risks of a mistrial or hung jury, both of which require re-trial at a later date, there is the certainty of expense for witnesses and experts (if any), the anxiety and preparation for trial, and the risk of a poor outcome or appeal, or both. With an appeal one is certain to have further expense, delay and risk, particularly in areas where the law is not well-established. Appellate review may lead to your having a successful outcome at trial reversed or remanded for further proceedings or a new trial. It goes without saying that the greater your success at trial, the greater the likelihood that your adversary will be motivated to appeal or challenge the judgment. Of course, you can also win and win big. But, to be fair, for every “big win,” there is a “big loss,” and everything between those two extremes from results worse than the settlement offered, to results that, after costs, net about the same, to results that are only slightly more favorable, to more favorable outcomes. You don’t know in advance how it will play out. You do know that you have the certainty of increased expense, delay and great uncertainty. Do you take the settlement (cash in the hand) or go for the trial (box on the stage)?
I dimly recall an aphorism attributed to a Chinese philosopher, but I have been unable to confirm its provenance. It goes something like this: “Justice should not be so certain that any man can go before the magistrate without great apprehension.” I take its meaning to be, in part: justice is uncertain and it is good that this is so, since it encourages us to resolve contentions as best as we can among ourselves.
The second metaphor suggests the choice between trial and settlement is like waiting in the rain for a bus. While you wait, you are getting wet. Time is not a neutral fact. The passage of time adversely affects you. A bus stops, but you must decide if the bus takes you “in the right direction” or drops you “close enough” to your destination. How many buses do you let pass in the hope that you will find one – if one exists – that takes you directly to your destination? How long can you wait? And, remember, there may not be a bus that takes you precisely where you want to go. Eventually, as with a trial, you get on a bus – but there is no guarantee that the bus you get on will actually take you closer to your destination than the bus you earlier let go by.
In the same way, if a settlement is refused, you must wait still longer. The passage of time is not neutral and prolongs the expense, anxiety and uncertainty of litigation. How many settlements do you let pass in the hope that you can get one that gives you everything you want – if such a settlement is ever attainable? How long do you wait? In the end, the choice of trial may not get you any closer to your aspirations. There may not be any bus that actually takes you to your destination.
There may always be a walk you have to take on your own to cover the last distance to “perfect justice.” Or, as John F. Kennedy said in the closing words of his inaugural address: “[H]ere on earth, God’s work must truly be our own.”