Should we go to trial, or take the money? According to a recent study, the “right” answer generally depends upon whether you are a plaintiff or a defendant in the civil lawsuit.
According to the study, in a full sixty-one (61%) percent of cases analyzed, plaintiffs who failed to settle the case prior to trial often received less at trial (approximately $43,000 less). To the contrary, defendants who refused to settle and made the “wrong” decision, were wrong in only twenty-four (24%) percent of cases analyzed, but paid a much higher price for being wrong ($1.1 million). So, should you listen to your attorney?
The study looked at 2,054 cases that went to trial from 2002 to 2005, and tried to account a number of different factors relating to the lawyers, the case and the court. [See, September 2008 issue of the Journal of Empirical Legal Studies–co-authored by Blakeley B. McShane, a graduate student at the Wharton School of the University of Pennsylvania, Martin A. Asher, an economist at the University of Pennsylvania, and Randall L. Kiser principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, found at http://www3.interscience.wiley.com/cgi-bin/fulltext/121400491/HTMLSTART]. While there are many different variables to consider, the study raises provocative questions about legal advice to go to trial, and the debate rages whether the lawyers are giving impartial advice when their pocketbook is part of the equation. While most cases settle, critics of the profession have long argued that lawyers have an incentive to recommend trial to collect fees.because of contingency fees or because they would be paid large fees to ready the case for trial.
Critics of the study note that cold hard statistics mean nothing when contemplating settlement of a particular case because each case rises and falls on specific facts, under laws which are decided by different judges. The study tried to account for those possibilities, however, finding that factors such as years of experience, the lawyer’s law school, and the size of the firm did not really impact whether the parties made the right decision to go to trial.
The bottom line– A good lawyer has to be able to tell clients that a judge or jury might see the case differently, and they might lose at trial– settle, don’t gamble. For the client and the attorney making the decision– remember, there are many factors — fees included.