SETTLEMENT vs TRIAL
The Law Offices of Savin & Bursk are proud to call ourselves and our attorneys Trial Lawyers. Our attorneys have a combined total of over 250 Trials. Our attorneys have been acknowledged by the National Trial Lawyers Top 100 Trial Lawyers and Top 40 Under 40 Trial Lawyers as well as listed to California Super Lawyers and California Rising Stars by Super Lawyers. Our attorneys have tried numerous cases in front of juries including auto accidents, products liability claims, slip and falls, general negligence, medical mal practice, and even capital punishment criminal defense case. Our attorneys have tried other cases by Bench trial, meaning cases with no jury and just the judge, and these include cases often tried at the workers’ compensation appeals board or in the probate courts. Not all law firms take cases to trial and not all attorneys can call themselves trial lawyers. When considering which law firm you want to handle your case ask the lawyers whether they can and will take your case to trial.
Clients often ask whether we recommend a Settlement or whether we should take the case to Trial. We get asked this question so often our office decided to give this topic a thorough analysis to help explain the pros and cons of each with the caveat that each case and scenario is unique and this is only a guide.
WHEN TO SETTLE:
A well known saying is “a bird in the hand is better than two birds in a bush.” This is often true in the majority of our cases. On average only 5% of our cases go to trial and that is because most cases do settle at some point before trial. Cases may settle very early in the case, at a settlement conference, at mediation, at the eve of trial, or even in the middle of trial.
Deciding whether to settle is a calculated risk. You must consider the upside of guaranteed money versus the possibility of less or no money. In every case we consider several variables in coming to an expectation of what a case is worth. We consider the injuries and treatment rendered, future medical treatment, economic or money damages at play, our client’s age and family status, earnings capacity, how our client’s case will present to a jury or judge, and ultimately how the facts of the case have unfolded. We also consider the legal strength and the geographical economic climate of your community and how a jury or judge may react to our facts. Not all facts of a case come into evidence so we consider what the actual trial evidence will consist of. Once we have determined what we believe your claim is reasonably worth based on our years of knowledge and experience, speaking with jurors after a verdict and obtaining awards from judges, the next step is to consider who is on the other side and whether there is sufficient insurance coverage or assets.
It is often said that a fair settlement leaves the plaintiff feeling like he/she did not receive enough money and leaves the defendants feeling like they paid too much money. Going to trial is expensive and can cost several hundred thousand dollars in complex cases. This cost needs to be taken into consideration. For instance, if our attorneys believe your case has a value of $250k and they are offering a settlement of $200k, it may cost us $50k to just take the case to trial and pay for experts. That means, in order to get our client the $250k that they deserve we need a verdict or award of $300k. If we believe that a jury or judge would only award $250k and we spent $50k, then as you can see going to trial is not worthwhile for anyone from a theoretical standpoint. Although a jury or judge can award something in excess of $300k, let’s not forget they can also award something less than $200k netting our client something significantly less than the settlement offer.
The only guaranteed money is a settlement. We always ask our client if they had the money as cash in hand right this moment would they be willing to place a bet with it in Las Vegas. The answer is usually no. In any case there is no such thing as a guaranteed victory at trial. In any case no matter how serious an injury or how despicable a defendant is, a jury or court award could always be significantly less than an offer or it could even be nothing at all, leaving our client owing money to the defendant. As your attorneys we know when a case needs to or should settle and what is a reasonable amount given the particular circumstances of your case. We will never undersell your case and we ask for our clients trust in our advice as to whether they should or should not settle.
WHEN TO GO TO TRIAL:
If your read the section above it sounds like we encourage settlement, and typically speaking we do. Trial is a risky proposition and a calculated risk. There is no such thing as a for-sure-thing in the world of litigation. Any trial lawyer can tell you that juries and judges are unpredictable and can drastically change from court house to court house. Every good trial lawyer has lost a case before a jury that they believed was nearly impossible to lose. Prior to taking any case to trial our office routinely runs mock trials to test our theories on volunteer jurors, and the remarkable thing is that the same case and facts presented to three different volunteer groups may come up with three drastically different opinions of the case. So when do cases go to trial and why. There are three (3) reasons why cases go to trial in our experience:
First – sometimes we are forced to go to trial because there was no possibility of any settlement. In some cases the defense does not believe our case, our client or our theory, and they make the early decision to take the case to trial. There is often never a settlement offer on the table or if anything, they offer a nuisance or cost of defense low ball figure. In these cases we have a choice, either drop the case or prepare for trial. In the majority of these cases our attorneys make the decision to fight the case through trial to give our clients their opportunity to explain to a panel of jurors or to the court how they have been harmed, and we let justice do whatever is in the cards.
Second – in other cases we do have a settlement opportunity but our knowledge and experience tells us that the settlement is not sufficient and not even close to sufficient. In a lot of these cases there are further and continued settlement discussions and sometimes these cases settle at the trial courtroom doors or shortly after trial starts. As your attorneys if we believe your case has more value than what is on the table we will continue to push your case until we are convinced we have brought our client justice. As in all settlement offers, our client always has the final say as to whether they wish to accept or decline an offer and as your attorneys we will only give you our recommendations.
Third – in the final set of cases, there is often a fair and reasonable settlement offer where the defendant and his/her insurance carrier are trying to do right and they acknowledge the seriousness of our clients damages, however, in some cases despite the defendants best and earnest attempts, it is just not enough, because it will never be enough. Some damages and harms are the type that no amount of money can fix, such as the tragic death of a beloved husband or the loss of your child due to someone or a company’s careless actions. How can we put a price tag on that and be okay with walking away. Some cases demand justice, they demand a voice from the people for the people, they demand a person’s story to be told, and for the community to learn about what happened. In these cases we will not stand by and allow an insurance carrier to sweep what happened under the rug and merely throw some money at the family to go away. Some cases are worth fighting to give our client and their family a voice and to allow justice to be handed down from the people.
WHICH OPTION IS FOR YOU:
At the end of the day we are your attorneys and your trial team, and we will do our best to explain the pros and cons of accepting or rejecting any settlement offer. We will give you the harsh truth about your case and its likely hood of success at trial. As your attorneys we try to guarantee as much compensation as possible without putting our client or his/her case at risk. Whether settlement or trial is right for your case, we cannot possibly know until we reach the end of settlement discussions, and that decision is ultimately our clients. In closing I will leave you with this, there mere fact that our attorneys and firm take cases to trial plays a significant role during settlement discussions in your case because our words to defendants are not empty threats, we can back them up. If we find ourselves together at trial you can have the confidence that our office will get the job done.