It’s been said that a good settlement is one where all parties in litigation are a somewhat happy with the result, (though not completely) and everyone is completely happy that the litigation is over. Why is that?
Lets begin with an understanding of what litigation is. A complaint is filed which seeks the assistance of the Superior Court of NJ – seeking damages or sometimes, some other form of equitable outcome which has nothing to do with money. For example, perhaps a complaint asks a court to determine where a property line is located. Its usually filed as a last resort, and the plaintiff who filed it is usually angry. They believe they have been harmed, and they are angry that it takes a lawsuit and payment of lawyers fees to get justice.
From the defendant’s perspective, they’re certain that they are not the cause of the plaintiff’s damages, or that the plaintiff has been unreasonable. Further, they feel that had the plaintiff been reasonable, it never would have gotten this far. The defendant feels the filing of the complaint is a personal affront! It’s the plaintiff’s own fault that the suit was filed, and they have not the slightest inclination to pay the plaintiff a dime!
Often, parties in litigation do not realize a few things about litigation, and what it will mean for them. First, it’s expensive. It’s not possible to tell a client how much they can expect to spend on litigation. It depends on how long the case takes. It depends on how reasonable the other side is. It depends on whether the court delays the trial, allows other parties to join, or otherwise demands information which will take time to compile and review.
Litigation takes time. Lots of it. Usually, once a complaint is filed, the other side has 35 days within which time to answer the complaint. That may be extended for another 30 days as a courtesy to another attorney whose desk has too many items on it to get the complaint. Then, the court will assign a time budget to the case. It could be anywhere between 150 and 350 days. During that time, the parties will exchange information and make motions, asking the court to make judgments about smaller issues in a case as the case moves along. The whole time, the clients are paying their lawyers.
Litigation is stressful. During the entire time the case is pending, the litigants are under stress. They are stressed about the amount of time litigation is taking. They are stressed about the astronomical costs which are being incurred, and every day they spend arguing about the case, and collecting information, and working with their lawyer, is another day they’ll never see again.
Outcomes are uncertain. Judges’ are human. They don’t always make the “right” decisions. The law is complicated, and judges are prone to interpret the law to reach a decision they think is fair – whether you think it’s fair or not. No matter how “right” you are, whether your counsel has told you so, or you simply believe it – remember that the Court may not agree. Even when you have a “great case”, you may still lose.
For all of these reasons, I often encourage my clients to consider settling a claim. It will save you time, stress, money and aggravation. Please don’t tell me it’s the “principle” which is at stake. Principle is good, and it should be borne in mind, but remember – principle comes at a high cost.
I could easily agree with a client that every case should be prosecuted or defendant through trial because of the principle at stake. But given the cost, the time, the stress, and the uncertain outcome, only one person wins in that scenario – the lawyer whose bills have been paid. THAT is not serving the best interests of my client.
