THE MORE TRIALS, THE BETTER THE SETTLEMENT
Originally published in The Fulton Daily Report
I retired as a civil trial lawyer a couple of years ago and became a mediator. Mediators preach the gospel of “Don’t litigate- mediate!” The paramount virtue is case resolution and trial avoidance. Our success is measured by whether or not we get the case settled.
Having said this, I will go out on a limb and suggest: lawyers should try more cases.
The more cases you try, the better settlement lawyer you’ll be.
It goes without saying that the lawyer known to try cases has more credibility at mediation. The advocate who pontificates about what will happen “when we take this case to trial” intimidates no one if he has never seen a jury. We all know who goes to trial and who does not, and lawyers who try cases garner more respect from their opponents.
How can a lawyer intelligently settle a case for an amount presumably based on a reasoned prognosis of what will happen at trial if he has never had a trial? If you were considering heart by-pass surgery and wanted an opinion about the probable outcome, would you take the advice of a doctor who had studied by-passes but never performed one, or would you be better served by a surgeon who had done hundreds of surgeries?
Like the experienced surgeon, lawyers who try lots of cases develop over time an intuitive sense about what could happen. They understand how the case’s strengths and weaknesses will unfold during trial, and what a jury might do.
Seasoned trial lawyers are not clairvoyant of course. But the crucible of trial work enhances counsel’s ability to advise the client whether to go to trial or settle, and if settle, on what terms.
I learned this the hard way. Early in my career I defended a significant damages case in federal court. I believed we had a great liability defense and was raring to go. The judge, who had 30 years on the bench and had seen hundreds of trials, seemed irritated by my enthusiasm. He would give me an exasperated look that seemed to say, “You know son, you are an idiot.” After I got creamed, his look changed to a more benevolent, “I tried to tell you, but you wouldn’t listen.”
Hmm, I thought afterwards, the dim light bulb in my brain slowly growing brighter, maybe I should have considered settling this one.
Fast forward several years and a few dozen more trials. I had another case I thought winnable with good liability facts, good impeachment material on critical witnesses and a good venue. This time, however, my optimism was grounded in the agonies and ecstasies of the courtroom rather than naive confidence.
My opponent, however, thought he could not lose, trash talking throughout the case and promising to mop the floor with us. He and I had the occasion to talk in the hallway during jury deliberations. “I probably shouldn’t tell you this,” he confided, “but this is only my third trial.” The bailiff summoned us back into the courtroom where we soon learned that the jury had returned a verdict against his client.
This lawyer has gone on to try many cases and enjoy great success, but looking back with the benefit of his later trial experience, I am guessing he might say, “Hmm, maybe I should have considered settling that one.”
Some would argue that the “gut check” of an experienced lawyer is obsolete today, when we have ample evaluative tools like jury verdict reports and analytics to help us discern what cases are “worth.” Clearly these tools provide important information, but with fewer trials, jury verdict reports represent only a small sampling of filed actions, leaving one to wonder how useful they are in forecasting results in other cases. If a venue has ten reported back surgery verdicts, but another 1,000 back surgery cases in that venue were settled, how predictive are the verdicts in those ten cases?
I know a lawyer who got stuck with a jury she thought would be terrible for her case. She called her client’s general counsel to tell him they were going to lose badly and should settle. The GC assured her they had done extensive jury verdict research and used mock jurors to analyze the case. They were not concerned. The lawyer responded, “It’s very nice to hear that you’ve studied what other juries have done. But let me tell you something. You haven’t seen this jury.” She spent a week in trial and suffered the disastrous result she had forecast.
I am sympathetic to younger lawyers who have a hard time getting trial experience. We live in the age of the vanishing trial, and risk and cost are driving settlements. There are ways to try cases if you are motivated, such as working for a prosecutor or public defender, taking pro bono cases, and begging to be included when others are going to court. Still, getting trial experience is not easy.
Nevertheless, it is important. The American College of Trial Lawyers sums it up this way:
[T]he failure to go to trial reflects on the ability of your counsel to give advice on litigation strategy and to be effective in the mediation or settlement context. Understanding the trial process is the unique skill of the trial lawyer and that skill is derived from the courtroom. It is that skill that allows the trial lawyer to be effective outside the courtroom as well as inside the courtroom. Trial experience is necessary to allow trial lawyers to give strategic advice and to be able to evaluate cases so that settlements achieve a fair and appropriate result.
These are wise words for the budding trial lawyer who also wants to be a great settlement lawyer.