Step four in how to win a lawsuit: Get the case settled

The biggest mistake most lawyers make is not even trying to get the case settled before they spend a lot of money – your money – preparing the case for trial. Notice that I said “most lawyers,” and I really mean that. Most lawyers in the United States today make this mistake day in and day out, on virtually every case they handle. Lawyers are taught in law school the importance of careful, thorough preparation. They are taught how to use the Rules of Civil Procedure to force the other side to provide every detail about their case, every document that supports their case, every witness who will testify and every piece of evidence they will present in court. So lawyers do everything the rules allow them to do. And that is often very expensive and wasteful.

What I find to be truly amazing is that most lawyers do not even consider discussing settlement until they have spent a lot of money building their case. Nor, for that matter, do the clients themselves. I mostly represent defendants, and in a substantial number of the cases I see, the very first notice my clients receive about a potential claim is when some Deputy Sheriff shows up at their door and serves them with the lawsuit papers. The people bringing these lawsuits, and their lawyers, have never even taken the time to write a letter or call my clients to discuss the nature of their claim.

Why is it that Americans are so intent on running off to their lawyers to resolve all their disputes for them? And why is it that lawyers are so intent on filing a lawsuit and commencing expensive discovery? Isn’t it at least worth a try to get the case settled at the outset? So make your lawyer tells you how he intends to get your case settled and what he can do to get it settled quickly.

I’ve been involved in a lot of cases where it is practically impossible to get the case settled because my opponents have spent too much money building up their cases. If I have a case that is worth $100,000 to my client to get settled, but the other lawyer has already spent $50,000 doing discovery, it is very hard to settle that case.

In most cases, the lawyer gets a third for his fee, $33,000, and after the costs are paid, there is only $17,000 available for the injured party. $17,000 out of the total $100,000 is really pretty disgusting. When the plaintiff gets such a miniscule portion of the total payment, he has no incentive to settle his case, so he is forced to take his chances in court and hope for a miracle. Had his case settled at the outset, instead of getting $17,000, he would have gotten $67,000.

Some attorneys justify their approach by saying they cannot get full value without properly preparing the case. Frankly I question that logic, but even if it is true in some cases, the economics are still flawed. Say that instead of getting $100,000 in settlement, the attorney only gets $75,000 because he settled it before he fully prepared the case. Now the attorney gets only $25,000 instead of $33,000, but the client gets $50,000 instead of $17,000.

This is a very real problem in the legal system today. If you want to see what happens when lawyers ignore all reasonable opportunities to settle their cases early on and aggressively litigate the case in court, read my novel The Litigators. When you’ve read the book, ask yourself “Who won the lawsuit?” You’ll be amazed by your answer.

Join me next week for Step five in how to win a lawsuit: Controlling the costs you spend on your case