Robbins: Getting to yes
Only a small percentage of legal disputes end in trial.
Instead, most settle out.
Some settle before a lawsuit. Others settle somewhere along the way, months, weeks, or sometimes even minutes before the gavel bangs. I have even had a couple of disputes over the years settled after trial began when it became apparent that a private solution was preferable to the risk of the trial running its course.
Two recent cases and some words of judicial wisdom particularly stand out.
In one case where liability was certain and the damage was severe, on the strength of a single letter, the opposition settled for the full amount demanded. As the paying party was an insurance company and the settlement was substantial, the outcome was highly unusual. Usually, insurance companies hiss and claw before a settlement is reached.
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Now, before you think this was black magic, what stood behind the settlement demand was months of investigation, preparation, and the engagement of qualified experts who concluded the liability was undisputed. Only when all legal “i”s were dotted and “t”s were crossed was the demand to settle made.
In another recent case that had been warring for the better part of two years, only two days before the start of trial, a settlement was reached. This too was the product of months of careful work, consideration, and earnest negotiation by attorneys on both sides.
Many years ago, I was in court for a divorce case, a very bitter one in fact. At some point in the proceedings the judge, who long ago retired, pulled counsel for both parties into chambers.
What he wearily advised was this, “Go out again and talk to your respective clients. Encourage them to work things out.” And he said the thing I have long remembered. “Why do they want me — a complete stranger — to make decisions for them about the most important things in their lives?”
He, of course, was right even though the parties were so entrenched in their resentments that they did not heed his advice.
The fact is this; one way or another whatever the dispute is, it will ultimately be resolved. Whether that will be by private agreement, by judge, or jury, in the end, there will be a conclusion that both parties will have to live by. Most times, if they can just tuck their emotions in their back pockets, the parties themselves, with the help of counsel, are in the best position to work things out.
It is gospel among attorneys that the essence of a good settlement is that both sides are equally disappointed. The reason is that most times at least, a settlement requires compromise; you give a little and so too does the other side. You both walk away with something, if not everything you dreamed of.
Modernly, most courts require mediation before a case may proceed to trial. Mediation, as distinct from arbitration, is where a neutral — usually a retired judge or experienced attorney — facilitates the parties to come to their own resolution.
Unlike arbitration, where the arbiter is a surrogate judge who decides the matter, in mediation, the mediator is equal parts guide, coaxer, encourager and independent legal mind whose goal is to help bring the parties together with a resolution each can live with.
More times than not, if the parties cannot negotiate terms of the settlement, with the aid of mediation, they can.
For that small percentage of cases — perhaps in the range of 5 to 10 percent — that do not settle, where they will end up is before the court. While the result may end up satisfactory, the stress, expense and process is often taxing.
An experienced attorney can often gauge how a dispute will end if it winds its way to court. Uncountable times I have advised a client how the court will likely rule. Most times, clients listen — your expertise is, after all, why they have retained you. Sometimes they do not. Most times, though, when they fail to adhere to four decades of “rodeos” in the courtroom, things end up pretty much as predicted.
The slug line here is this: more times than not settlement makes sense. The challenge is to put hurt, pride, and resentment aside and consider the decision as any other “return on investment” calculation. Not only may you spare yourself the aggravation and expense of trial but, most times, I have learned, once the settlement is behind them, folks may grumble but move on instead of living with the aggravation of what may seem an endless dispute.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.