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.

Too easy to file a lawsuit in the United States?

Is it too easy to file lawsuits in the United States? Should good faith settlement discussions or mediation be a prerequisite to the filing of a lawsuit? Lawsuits, like marriages, are easy to get into, but much harder to get out of. It costs practically nothing to start a lawsuit, and any minimally competent trial lawyer could draft all the paperwork in an hour or less. But once the lawsuit is started, it sets in motion a chain of events that, like nuclear fission, is not always easy to stop.

It also forces the defendant to incur the expense of incurring substantial legal expenses that the plaintiff, whose lawyer is on a contingency fee basis, does not incur. Then the discovery process kicks in, which initiates the real costs of litigation as lawyers bombard each other with demands for document production and interrogatories, followed by depositions, hiring of expert witnesses, and trial preparation activities. It’s not easy to stop this process. For one thing, once the attorney for the plaintiff has incurred costs, the only way to recoup them is by a settlement, something the defendant may have no interest in, at least before discovery is completed, when even more costs have been incurred and the case has become even more difficult to settle.

The cost of justice (part 2)

Let me ask again the same question I asked in my last blog – Is the cost of justice in the United States worth the price we pay? Here are some interesting statistics. In 1970, just after I started practicing law in Minnesota, the state’s population was 3,800,000; by 2000 it had grown to 4,900,000, a growth of 29%. During the same period the number of registered lawyers in Minnesota grew by over 400% to a total of 25,100 in 2005, which comes out to about 1 lawyer for every 200 people.

In the year 2000, over 2,000,000 lawsuits were filed in Minnesota, 700,000 alone in Minneapolis. Simply put, the citizens of Minnesota are paying 400% more for legal services today than they were just 30 years ago. Does anyone really believe that the quality of justice has improved by 400% during this time period? I would argue that in many respects, the quality of justice is far inferior today because the cost of justice is far higher. I’ll give you more information about this in a future blog, but let me make it absolutely clear – in my 42 years of trying lawsuits in Minnesota and many other states throughout the United States – the cost in absolute dollars of having a dispute heard in court has totally skyrocketed.

In 1970, a really big case would produce fees around $10,000; today virtually identical cases now routinely produce around $250,000 in fees, and many, many cases cost well over $1 million in legal fees to get resolved. And that’s only the fee on one side. Some cases have 3 or 4 parties each paying that amount in legal fees. I have been involved in many cases where the total fees paid to the attorneys involved far exceeded the amount actually paid to settle the case. How can that kind of expense possibly be justified merely to resolve a single dispute with another person?

My novel, The Litigators takes a real-life look at this issue. Look into it, you may be surprised by what you see really going on inside the legal community.

Join me next week for Is it too easy to file lawsuits in the United States?

The cost of justice (part 1)

Is the cost of justice in the United States worth the price we pay? The United States invests more of its gross national product than any other country in resolving our disputes with one another. In my own personal experience, I handle products liability cases throughout North America, that is, in both the United States and Canada. The same products I represent are sold in both countries in comparable volumes, but there is almost never a lawsuit filed against those products in Canada, whereas I keep extremely busy defending the same products in the United States. Presumably, the same incidents occur in Canada as in the United States, but no one seems to bring a lawsuit there. Does anyone believe the Canadians feel they are receiving less justice than we are in the United States?

My favorite story comes from a dinner conversation with a Chinese law professor when I asked him how a personal injury claim would be handled in China. He did not even understand my question, so I posed a typical hypothetical case to him and asked him first how the medical bills would be paid to the injured worker? He responded that in China there were no medical bills because everyone had free health care (a topic worthy of a future blog). So I asked him about payment of lost wages, to which he pointed out that all employers in China continued a worker’s salary while he was sick or injured so he would never lose any income from an accident. Finally I asked him about “pain and suffering,” to which he replied with a deep smile that betrayed my cultural ignorance, “For pain and suffering we have acupuncture.”

So, are Americans better off than the citizens of every other country in the world because we sue each other every day for wage loss, medical bills, and pain and suffering? I suggest that this question would likely be answered very differently by a group of lawyers than by a group of their clients who have gone through the American legal system.

In my novel, The Litigators, the lawsuit, which is the focus of the book, is entirely typical of lawsuits filed every day in the United States, and the process in which my characters find themselves enmeshed is also highly typical. If you decide to read the book, I suggest you ask yourself this question all over again. You may be surprised at your answer.

Join me next week for More about the cost of justice in America.

Who EXACTLY represents the public's interest in civil litigation?

Civil cases between private parties clearly impact the general public; time is used by judges and court personnel, and decisions made by judges and juries can have a profound impact on the lives and businesses of countless people. I have heard many lawyers promote our tort system by arguing that it is very effective in preventing so-called transgressions by corporate America. Their view is that the threat of a lawsuit is key in preventing negligent behaviors before they occur. Of course, the lawyers have not actually been hired to represent the public’s so called best interests; they are hired only to get the most they can for their one client. In fact, no one represents the public’s interests in civil lawsuits, not even the judge, whose sole job is to referee the dispute before him.

What I find most troubling by the argument that these lawyers are acting in the public’s best interests is that they have not asked the public to define what its best interests are. Instead, they somehow equate the public’s best interests as identical to the amount of money they can get for the one client they actually do represent.

But what gives an individual lawyer the insight to know what is and what is not in the public’s best interest? Is the public’s best interest served by causing doctors and hospitals to run countless unnecessary tests just to avoid medical malpractice claims? Is the public’s best interest served by making the cost of doing business and the cost of buying insurance so high as to force companies out of business or to price their products so high as to make them uncompetitive? Is the public’s best interest served by filling operators’ manuals with dozens of useless warnings that very few people ever read, thereby reducing the importance of the few warnings they actually should read, just to have some warning in print to cover any potential lawsuit the company might face?