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Vail Law: In legal disputes, consider settlement before litigation

Rohn Robbins
Vail, CO, Colorado

Consider settlements before lawsuits in legal disputes

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Vail Law bug

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One thing I’ve mentioned more than once in this column is that litigation is the end of the road, the last place you want to be, not the first. It’s where you end up when all other options fail.

Before embarking on a lawsuit, it is worth your time and deep contemplation to understand that litigation – even successful litigation – is almost always more expensive, more time-consuming and more frustrating than you wish. While I’ve been a litigator for more than 25 years now and can count my share of successes in the courtroom, I can count on one hand the times a client – even when successful beyond initial expectations – has told me what a good time litigation is. Stated simply, even when the outcome is good, the process generally isn’t.

Before we get to settlement, though, let’s take a look at what the heck is so “civil” about a lawsuit.

“Civil” in law connotes that the matter concerns a lawsuit between two (or sometimes more) parties rather than the prosecution for an alleged crime by the state. Civil lawsuits are suits for damages – generally (but not always) in the form of money. If the plaintiff is successful, in most cases the defendant will be ordered to pay, and the court will enforce the obligation to pay.

Criminal suits, if successfully prosecuted, exact fines, imprisonment or other similar sanctions (probation, registration as a sex offender, etc). In criminal actions, you stand to lose your freedom. In civil actions, you stand to lose your pocketbook.

About that settlement

People settle for different reasons. Certainty is one of them. Settlement of a civil action puts an end to it. There will be no surprises as there might be if the matter were taken to trial. After all, juries sometimes do strange things. Sometimes, your own expectations are colored by emotion.

Another factor to consider in contemplating settlement is the time and emotional energy which is invariably invested in litigation, to say nothing of the costs. Almost invariably, the investment of time, energy and emotional resources in bringing a matter to litigation is more than either party first contemplated. In a federal court case, it can take several years for a matter to come to trial. The more complex the matter, the more trial time it will require, and, generally, the longer time before the court will actually hear the case.

In a complex case I took to federal court a couple of years ago, a seven-week jury trial took more than four years from the date of filing to actually come before the court. And trial isn’t necessarily the end of it – appeals can take another several years.

There are other reasons to settle. Privacy is one. If a matter is settled (particularly if it is settled early), there may be no (or very little) public record. This seems particularly germane in certain kinds of cases, family matters and estate contests in particular.

Not only is a trial generally open to the public, but, before the trial, the parties might be subject to deposition, which is sworn testimony, under questioning by opposing counsel out of the presence of the courtroom. Generally, deposition testimony is more far-reaching than what might be permitted at trial.

Keeping it confidential

If a settlement is struck, it can (and almost certainly will) be subject to a confidentiality provision and a “no admissions” clause. Simply, the terms of settlement will not be disclosed by either party and, despite the likely payment of a cash settlement, the parties will expressly reserve that neither has done anything wrong. As odd as it may seem in litigation, “face” is often an important consideration in legal disputes and settlement of the matter can have the effect of neither party having to admit that he contributed to the conflict.

Because of the stakes of litigation are often high, settlement, on reasonable terms, should always be considered. Although settlements are almost always reached for less than the potential trial liability, there are no guarantees at trial. It is certainly not usual to emerge from trial with less than one had hoped for. In disposing ofa matter in a certain and final manner – and disposing of the conflict in your life – it is well worth the consideration of whether proving you’re right outweighs the potential damage to health, wealth and happiness.

Sometimes – but not always – its simply better to just move along and to get on with the business of life.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a former adjunct professor of law and may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”. Robbins may be reached at 970/926.4461 or at robbins@colorado.net.


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