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Case Settlement Timing

New York Litigation attorney, David Boies, discusses timing with settling cases with lawyers and clients.

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Usually, the opportunity to settle comes a couple times. If you get lucky, it can come some other times. There could be other windows. But it usually comes early, particularly if you’re a defendant because the plaintiff doesn’t totally usually understand their case. You probably, if you’re the defendant, you probably have more facts available to you than the plaintiff does. The plaintiff hasn’t invested a lot of money in trying a case and hasn’t gotten as dug in emotionally as they will later.

That means that there’s an opportunity to settle the case early, often on reasonable terms. Now, it doesn’t always happen that way. Lots of plaintiffs are unrealistic. Lots of plaintiffs lawyers are unrealistic. The principle of settling early actually applies to plaintiffs as well as defendants, because a defendant, although the defendant may know the case better, the defendant early on has not invested a lot of time and money, is not emotionally dug in.

You have an opportunity to often settle that case in a way that makes both parties better off, if you can do it early.

And if you can’t do it early, you’re gonna have another window when you get close to trial because when you get close to trial, it really concentrates people’s minds. They begin to realize they could lose the case. A lot of lawyers are really bullish about a case in the early stages, they’re telling the client, Oh, you’re gonna win. This is gonna be a great case. and then they get close to trial, they say, Well, maybe, this could happen, and you never know, and a jury’s unreliable, and you could lose.

And the client says, Well, what do you think the chances of winning? And they say, Well, maybe 50-50. And they’ve been telling the client, Oh, you’re gonna win. This is a great case. The other side doesn’t have a leg to stand on, and all. And then you get closer to trial, they begin to get a little wobbly. And that can lead a client, whether defendant or plaintiff, to say, Let’s try to resolve this.

So, you usually have an opportunity on the courthouse steps. You usually got an opportunity to settle early. Trying to settling in the middle, unless your prepared to give more than you usually want to, is difficult because first of all, you haven’t settled in the beginning. Now, the other side’s gonna think that you’re settling because you’re weak. They’re gonna be really dug in. In the middle of the case, that’s the time when each side’s emotions are the highest.

They’re beating their chests. The lawyer is telling the client what a great job he’s gonna do for them. The client feels confident because they haven’t really been shaken yet. It’s the time when each side feels probably the best about the case that they ever do. And so that’s a difficult time to get the other side to settle reasonably.

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