Why We Settle

We have a great case.  Our cause is just.  Our facts are compelling.  Our witnesses are believable.  Our lawyer is – let’s not deny it – brilliant.  The other side is a shambling herd of liars and incompetents.  Their facts are made up – obviously so.  We will drive them before us like lions slaughtering mice.  We will get a gazillion dollars.

So why settle? 

Because we don’t bribe judges.  We can’t guarantee results.  Things happen.  One of our witnesses might melt down.  Or forget.  Or not show up.  Our lawyer might get sick.  The case might eat away at our financial resources, so we have nothing left for trial.  The stress may exhaust our client, or drive away the friends who we planned to be our witnesses.  Our expert may be discredited (there’s one who used to be in the KGB – seriously).  The judge may take a dislike to our lawyer, or our client.  Or take a great liking to the other lawyer, or client.  The trial might get adjourned (we are presently about 20% below our statutory minimum number of judges – you can thank Justin Trudeau).  We could arrive on the first day of trial, then get bumped for a year, or two.  And there’s no guarantee that we’ll be heard on the new date.  We might get bumped again.

Even if we win the trial, the cost of that will almost never be covered.   We could “win” the trial – but get less than what the other side offered as a settlement.  We might have to pay their legal expenses.

A decent settlement is better than a great trial.  When we settle, we are in control.  Not some judge who never met any of the people involved.  We can choose to negotiate through the lawyers.  Or we can mediate – and we pick the mediator.  We don’t get to pick the judge.

We can decide whether the deal is “good enough”.  We don’t need to call all our witnesses (though we can bring some).  We don’t need to allow our witnesses to be questioned by the other side.  We can do stuff in a mediation that would not be allowed at a trial.

When we go to trial, it’s usually all or nothing.  We argue we should get everything.  The other side argues we should get nothing.  Or we argue they should get nothing and they argue for everything.  In a settlement, we can trade some items: they get a “win” on this issue, we get a “win” or that issue.  In a settlement, we can structure the deal more creatively: save taxes, put money into an insurance policy, provide for different contingencies.  A judgment is much more locked in.

When the other side refuses to negotiate, then a trial is necessary.  When they refuse to make any decent offer, we have to go to trial.  – I have had many “not another penny” offers where we got more than tens times that “final offer”.

We prepare every case for trial.  Because when we are prepared for trial, we can negotiate from strength.  The reality is that the Defence rarely prepares as well.  They are terrified at the mediation and settle on good terms (for us). 

So, yes, we settle when we can.  We do it when it’s the best result for our client.  Not just to hear ourselves roar.