Illustration by Scott Roberts
Perry Mason never settled—but then again, he was a fictional character. Research shows that the vast majority of cases settle out of court, far from the eyes and ears of judge or jury.
“Trial is the anomaly, not settlement,” says attorney Eli Karsh, a partner at Liberman, Goldstein & Karsh. “There are lots of reasons to settle out of court. The chief one is, you get the certainty of result without a lot of risk factors that happen at trial. With a trial, either a judge or a jury is going to decide. If it is a judge case, you know who the judge is, so you may have an idea what the judge will do. A jury is more difficult, because you don’t know what kind of jury you are going to have.”
“Settling a case is generally better for all parties if you can come up with a fair settlement amount,” says Andy Crouppen, a partner at Brown & Crouppen. “Going to trial can be a very long, drawn-out process. For someone who was in a traumatic accident, they are forced to relive the emotion that goes along with that, and sometimes without much upside. Sometimes you run the risk of getting less than you are offered—or getting nothing.”
Another advantage: privacy. “Settlement almost always comes with a some sort of confidentiality clause,” Karsh says. “Rarely in a settlement will either party admit liability.”
But how does the attorney determine the amount to ask? “There is enough data out there that people can look at similar cases with similar facts and similar injuries and can find a trial verdict that is representative of their case,” Crouppen says.
There are those who decline to deal. “I have had clients say, ‘It is just not enough money. I don’t think it’s fair for what I went through,’” he says. “I will tell them, ‘I agree with you. But in terms of the value placed on a claim like this by the legal system, if you go to trial, I can tell you with certainty that you will walk away with the same or less.’”
Sometimes the parties can’t concur. Crouppen cites a car-accident case where the offer fell way short of expectation because the insurance company claimed the injuries were preexisting. “In situations like that, you can have a settlement offer that is $10,000 to $20,000 become a case that is worth $100,000 or $200,000,” he says. “We are looking at it as someone who had back surgery or a broken neck and they are looking at it as someone who just got a little whiplash.”
Negotiations can occur at any time—even before the suit is filed. “I may draft a lawsuit and write them and say, ‘If you don’t get back to me in two weeks and start some meaningful settlement discussions, I’m going to file this one,’” Karsh says.
Judges love settlements—they clear overloaded dockets.
“Going to trial and filing a lawsuit should always be your last resort,” Crouppen says. “If you have a dispute with your neighbor, I always encourage people to talk to each other and try to work it out. Don’t get the lawyers or the courts involved.”
