To Litigate or to Settle?
This is a question each client must face. In fact the answer turns out to be both; to get the best possible outcome you must prepare and even begin to litigate in order to achieve the best settlement offer. This however is much easier said than done in today's world.
You see, almost all new attorneys shy away from litigation. This is for three reasons:
- for the last decade or two law schools have emphasized 'tools' such as litigation support, electronic discovery, and of course online searching including Westlaw - this works to bias the new or recent attorney toward research not litigation,
- historically 1 out of 1,000 attorneys is a great litigator because it requires 'on your feet' skills that are honed through experience from being able to connect a statement just made in court to a viable precedent to maneuvering opposing counsel or a hostile witness into opening a door they shouldn't,
- most attorneys, especially those that are litigation adverse, work constantly to reduce uncertainty and therefore reduce risk; in the courtroom ANYTHING can happen and trial invariably introduces uncertainty and therefore risk.
You can see how these two things work hand in hand to make an estimated 80% of most attorney billings NOT be litigation related. The less experience, the less inclined to litigate. This can work to your direct advantage if you choose your attorney wisely. Interview as many as you need to until you find an attorney that you communicate well with, that you respect and most importantly trust.
Make certain, that if litigation is an option, that your attorney LIKES to LITIGATE, that she or he LIKES to go to trial. This scares the bejesus out of most and especially new attorneys which gives you an advantage both in the courtroom and at the settlement table.