Introduction
So you find yourself in a lawsuit. You sued someone, or you got sued; it really doesn’t matter. You’re spending money or, if you’re involved as an injured party in a lawsuit for damages, you are waiting for the compensation for your injuries.
Regardless, you’re stuck in a time-consuming and less-than-pleasant process that may be costing you lots of money, and there is no certainty about the outcome. Maybe you’ll win, maybe you won’t; and, even if you win, you could really lose, given the money you’ve spent, the time you’ve wasted and the opportunities you’ve lost. All in all, not a good situation!
Lawsuits cannot always be avoided, but opportunities to resolve them without a trial are always present. Federal and state courts provide vehicles for forcing litigants into mediation, where a reputable third party—a judge or someone skilled in mediating disputes—simply uses his or her skills to help the parties reach common ground.
The mediator or settlement judge cannot force a settlement, but he or she can force the parties to engage in the process. Not every case will settle, but the opportunity to settle is always present, so long as the litigants are willing to consider risk, cost and time. Similar opportunities to settle before a suit is filed are also present.
Advantages of settling a lawsuit
After almost 30 years of litigating and settling cases, I find the attorney-client relationship most severely tested when we discuss a possible settlement.
“Whose side are you on?” “She’s not getting anything from me until some judge forces me to pay.” “Are you scared of trying my case?”
I’ve heard all of these comments, and more, and often in the same conversation that includes questions like: “Why is this costing so much?” “When will this be over?” and “Can’t we get a continuance; I really want to join my family for our vacation?”
Your attorney is on your side, but he or she would be a lousy advocate if the issue of a settlement was not explored thoroughly. The settlement process provides several advantages.
First, a settled case is a case that ends the monthly billing cycle for you. (The corollary, often lost, is the fact that a case that an unsettled case usually generates more fees for your attorney).
Second, every case—and I mean everyone—has its flaws! Rare is the case that isn’t better settled and resolved now.
Finally, even when the settlement process does not result in a settlement, you and your attorney will surely gain insights into the other side’s case and you’ll often get a “free look” at what an experienced decision-maker thinks about yours.
Before he went to work for the federal government in 1861, Abraham Lincoln was a very accomplished attorney. He also wrote a little about a variety of subjects, including the art of lawyering. About resolving disputes, he offered the following thoughts:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and a waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Interesting, in these words, is the fact that some 150 years ago, people involved with the litigation process were concerned about the same issues: cost, time and energy!
There was no professional class of mediators in the 19th century, and court rules did not mandate participation in settlement conferences, but the rationale for resolving disputes without having a judge or jury impose a resolution on the parties was present then, just as it is now.
Ah, but what about emotions? Lawsuits are not simply about money; they also involve righting wrongs and vindication. Sure, and attorneys appreciate the emotional aspects of your litigation experience! Not getting “your day in court” can be a very unsatisfactory outcome.
In some cases, a trial may be the only satisfactory approach. But, and this is important, that “day in court,” when it occurs, can also result in a very unsatisfactory and costly outcome, and that outcome may occur long after you have processed and resolved the emotional issues.
Conclusion
What’s the bottom-line takeaway? There are two: First, always give the notion of settling due consideration. Second, recognize the fact that by raising the prospects for engaging in the settlement process, your attorney has focused on your best interests, and not on his or hers.
Information in this article is provided as a matter of information and education only. It is not intended to provide legal advice or counsel. Do not take action in specific cases without the full knowledge of the facts, and competent legal advice from your attorney.
About the Author
Don graduated in 1979 from Arizona State University with a B.S., majoring in accounting and earning a Juris Doctor in 1982 from The John Marshall Law School. Don has been admitted to the Illinois State Bar since 1982 and the District of Columbia. He has extensive experience representing the rights of creditors and insurance companies. Don treats his clients’ outstanding accounts and claims as his own and believes throwing good money after bad makes no sense. His collection methods are proven effective. He tries to resolve these matters amicably at first, so that his clients may retain important relationships with their clients.
In addition to his collection practice, Don has been in-house legal counsel for a start-up litigation loan financing company, where Don was responsible for creating and implementing policies and procedures, providing legal advice to management, handling and advising on routine legal issues, transactional, compliance and corporate governance matters, underwriting and monitoring outstanding loans, and legal collection of defaulted loans. Don has also served as in-house legal counsel for a collection agency where his responsibilities included drafting collection letters, settlement workouts, litigation, and supervised and taught employees compliance under the Fair Debt Collection Practices Act.
Don’s law practice and his positions as in-house counsel have given him exposure to a wide range of problems in large and small companies from the perspective of both lawyer and management. Don has served for many years as an arbitrator for the Circuit Court of Cook County Mandatory Arbitration program and was chair-qualified with the authority to administer oaths, rule on the admissibility of evidence, and decide questions of fact and law in order to reach an award in a case.
