Every lawyer has faced this situation: The other
side has placed a good offer on the table, but your
client refuses to take it.
What to do?
Under legal ethics rules - ABA Model Rule 1.2 (a) -
it is ultimately the client's decision whether to
settle a case or head to trial. But the lawyer has a
duty to ensure the client makes a fully informed
decision. And, in truth, clients look to lawyers to
guide them and to make a recommendation.
"I don't think you can take a hands-off approach and
say, 'Whatever the client wants, we'll do,'" said
Leo Boyle, a Boston trial attorney and former
president of ATLA. "It's incumbent upon you to lay
out what juries are doing, what the statistics are,
what the time line is for getting to trial, and what
the time line of the appellate process is."
If you've educated the client fully about the risks
of trial and the benefits of settlement, then you've
done your job, Boyle said. After that, "If the
client says, 'It's important for me to get at the
truth and expose it in court,' then so be it."
So - how do you educate a client on the value of
accepting a settlement?
Start Early
It's important to tell clients in initial meetings
how unpredictable and risky litigation can be. Many
clients, convinced of the "rightness" of their
position, are certain there's no way they can lose.
Unless the lawyer disabuses them of this notion
early on, even the best settlement offer may fall on
deaf ears.
When clients look at the plaques and framed
newspaper articles on the office walls of Andrew C.
Meyer Jr., they are certain he can land a
record-winning verdict for them, too.
"I say, 'Yeah, but those are the cases where there
was no offer,'" said Meyer, a Boston attorney who
concentrates in catastrophic cases of medical
malpractice. "I tell them that 94 percent of med-mal
trials are won by the defendants, so there are big
risks of going to trial."
From the outset, clients should be told that the
astronomical verdicts they see on TV or read about
in the newspaper are often anomalies that are
reversed on appeal or significantly reduced. They
should understand that litigation is a long process
that takes a toll not just financially but
emotionally. They should be kept abreast of the
particular political climate: whether juries in the
jurisdiction are more conservative than elsewhere,
for example.
"Expectations at the outset frequently are
unreasonable," said Michael L. Roberts, a
plaintiffs' attorney in Gadsden, Ala. "They're based
on the publicity that attends large verdicts, and
also what you might call propaganda from tort-reform
advocates. It gives people the impression it's very
easy to go into a courthouse and get money, when in
fact that's not the case at all. You have to spend
some time giving them information that counters the
effect of this propaganda."
That lack of perspective isn't restricted to members
of the general public.
When they become personal-injury plaintiffs,
businesspeople - who've been heavily influenced by
the tort-reform movement - often are the hardest to
convince, Roberts said, "because they receive a
less-than-evenhanded presentation of what the jury
system really is. So the educational process can be
more challenging when you have somebody with a
pre-existing mindset."
Give It Time
Many clients - including those in divorce, personal
injury, and employment matters - tend to be highly
emotional at the start of a case. They are so eager
to tell their story in court that they can't yet
accept that they might do better to accept a good
offer and forget about court. It may take months
before they are willing to discuss the concept of
settlement.
Bruce Dorner, a solo in Londonderry, N.H., allows
his divorce clients a cooling-off period, after
which the emotions often settle down and the reality
of the high cost of legal fees of protracted
litigation begins to take hold.
Once this begins to happen, the client is more able
to listen openly to a detailed presentation of the
relative risks and rewards of taking the case to
trial.
Present the risks.
The bottom line is that jury trials are always a
gamble. And lawyers must help clients understand
this fact.
"I tell clients that if you try the same case 10
times, you'll only win five times. And those five
wins will have different numbers," Meyer said. "I
talk about rolling the dice, and that we don't know,
nobody can know what will happen at trial until you
do it. And the question is, what can they afford?"
For example, can a financially strapped family risk
losing $500,000 in hopes of getting another
$250,000?
Let them know it's their decision.
"If the client doesn't want the deal, you don't want
to browbeat them, because you don't want them to
come back and blame you," said Nancy Shilepsky, a
plaintiffs' employment litigator in Boston. "So at
the end of the day, it has to be their decision,
even if you think you know what right for them. You
can advise them strongly. But you cannot make the
decision for the client."
Meyer, who has landed more than $95 million in
verdicts and another $150 million in settlements,
makes it clear that he loves to go to trial. He
wants clients to know that when he recommends a
settlement, it's not because he's afraid of the
courtroom.
"I tell them I'd rather go to trial, but they're the
boss," he said. "If they want me to try it, I will.
If they want to settle, I'll do that. But I have the
obligation to give them the information so they make
the choice. I'm empowering them, and letting them
know it's all up to them. But I also give them tools
to make that decision. I tell them, 'If this were my
money, this is what I'd do.'"
Engender trust.
It's tricky to move from the role of advocate to the
role of counselor. Many clients - upset about the
injury that led to the lawsuit - want their day in
court, no matter what the risks. They may become
suspicious when their lawyer suggests that
settlement might be a good idea. "They say, 'You're
not worried about me, you're worried about your
money,'" said Bernard J. DiMuro, a litigator in
Alexandria, Va.
Clark Brewster, a trial attorney in Tulsa, Okla.,
who's won numerous multi-million-dollar verdicts,
said it's impossible to get clients to accept your
advice unless you've earned their full confidence.
"Sometimes, when a case is so good, the defense will
want to settle it quickly," he said. "But the client
hasn't formed a bond yet with lawyer that's needed
for him to be deferential" to the advice to settle.
Typically, that trust is formed after the client has
spent enough time with the lawyer. "Most of the
time, our clients have been to many, many
depositions and we've had many, many office
conferences, so that they really do feel they can
rely on our advice."
If clients are educated from the outset and kept
informed of important developments throughout
litigation so that they trust him, Meyer finds they
rarely ignore his recommendations. "The client could
have a leg fracture and get offered $1 million, and
they'll say to me, 'Is that good?' They only know
what you tell them, because the client is uneducated
in the value of a claim. So it's important to have
communication with them that's open and trustworthy,
because they haven't got a clue," he said.
Present settlement as a victory.
It's critically important to acknowledge the
client's feeling that no amount of money can restore
what they've lost.
"You have to pay respect to the issue that brought
them here in first place," Meyer said. Otherwise,
clients see settlement as some kind of concession or
loss rather than a beneficial resolution to the
case. "I let them know that it's a win."
Brewster explains to his clients the financial
advantages of settlement. For many, a structured
settlement paid out over time is more attractive
than a lump-sum verdict. Also, any portion of a
verdict designated as punitive is taxable, but
damages for personal injury are not. As a result, a
smaller settlement amount can actually result in the
plaintiff receiving a greater net dollar figure.
With divorce clients, Dorner emphasizes the value of
retaining control over the outcome.
"I tell my clients, 'In a privately agreed
settlement, we will write down all the words we've
agreed to, and then you, the clients, sign it. But
if we go to court, that process is reversed. We've
given the judge a blank sheet of paper with your
signatures on it, and whatever the judge writes
down, we'll have to live with. Now, which method
would you rather use with your family and your
ex-spouse?' Do they want control or do they want to
give it to judge?"
Dorner also warns clients that if they come away
from the table feeling like they've scored a major
victory, the inequity of the situation will probably
come back to haunt them. This is especially true in
situations involving children, where the parties
will have an ongoing relationship.
"My view of a settlement is: When you get up from
table grumbling that you gave up more than wanted,
but at least it's over, it's probably a fair deal.
Nobody should get up from table cheering for joy.
Everybody should feel they gave up more than [they]
wanted but at least it's over," he said.
Getting An Outside Perspective
Lawyers often find themselves performing a tightrope
walk, struggling to maintain the delicate balance
between being a zealous advocate and a counselor who
provides sobering advice. When they see the case as
having serious weak points and begin cautioning a
reluctant client that settlement might be the
prudent course of action, they run the risk of being
seen as a traitor.
This is when it's often helpful to provide the
client with an outside perspective.
Mediation.
"There are some deals the client should take. It
just makes sense. And ADR is a really good tool" to
help the client see that, said Shilepsky. A mediator
gives client some objective measure of the offer.
"If you push too hard on a client, they may worry
you're not in their corner," she said. "That's the
worst thing. It really undermines the relationship.
Sometimes it's better if they hear it from a third
party than from you."
Brewster often relies on experienced mediators to
help his clients see the light.
"Many times they're former judges, who can offer a
perspective on the strengths and weaknesses of the
case," he said. "The lawyer has been their champion,
saying, 'Yes, we're gonna get 'em, we're gonna win!'
When the lawyer starts saying, 'We have problems
with the case,' they don't want to hear it. It's
best to let that come from a mediator, who can say,
'I've listened to both sides, [and] I can tell you
having been in courtroom for 20 years, you may lose
this case."
Focus groups.
Donald Beskind, a plaintiffs' personal injury
attorney in Raleigh, N.C., uses focus groups to show
how real jurors view the case.
"Sometimes we find the focus groups see the case as
worth a lot more than we think, but that's rare," he
said. "More often, the clients find the case isn't
worth as much as they think. It can also be useful
when clients think a particular theory or witness -
including themselves - are strong, but we have
doubts about it. They often find that theory or
witness isn't as strong as they think."
Beskind uses this method only in high-end cases,
when trial is nearing and it's advantageous to have
focus group input anyway. Typically, he gives a full
presentation of the case to a large enough group -
say, 32 people - that later is divided into four
deliberative groups. Costs range from $5,000 to
$10,000.
"But if you end up going to trial, all that you
learn from the focus groups is very helpful," he
said.
Watching the focus groups can also strengthen a
client's resolve to go to trial if they are in
doubt, he noted.
"We don't use focus groups to create an outcome, we
use it for education. But it can result in an
outcome, including the choice to go to trial," he
said. "It's not a frequent problem that clients'
goals and expectations are different from ours, but
when it happens, this is a reasonably scientific way
of resolving that."
Get a second opinion.
In one instance, Boyle - with the permission of
defense counsel - asked the judge to talk to a
reluctant plaintiff.
"He just chatted with him, and talked about what
he'd seen over many years on bench, what juries can
do, and the surprises you can get from jury," Boyle
said. "He talked about the advantages of the
certainty of settlement. He did it in very gentle
way, not forceful, not trying to be an advocate, but
just talking to him as a consumer of the legal
system, a person who was in the civil justice system
as a customer, if you will, and the judge wanted to
make sure he made a good decision."
On another occasion where he felt he wasn't
adequately communicating the risk of trial, Boyle
asked a renowned plaintiffs' lawyer from another
firm to talk with his client. It gave the client
confidence in Boyle's recommendation.
Juries Are Always A Crapshoot
Boyle said it's only in a handful of cases that his
clients have been unwilling to follow his advice.
Still, it happens to every lawyer.
And what makes dealing with these cases so difficult
is the ever-present possibility that the client who
refuses to settle a weak case, will beat the odds in
court.
Meyer chuckled remembering one particularly
obstinate client.
"We had one case, the guy was a methadone addict and
he'd been in a car accident," he recalled.
The defendant was a wealthy businessman.
"Our client though he'd hit the lottery. I think
they offered $100,000 - and his only complaint was
headaches! And he was on methadone! But he wanted to
try the case. We said to him, 'Are you out of your
mind? You have a dent in your car and headaches!'
But he demanded a trial."
On the stand, the plaintiff admitted under
cross-examination that he'd lied to the insurance
company about the value of his car and had turned
back the odometer.
"I got him out in the hall and said, 'You've got to
be crazy! You just admitted insurance fraud on the
stand,'" Meyer said.
But it turned out his client had gambled well. The
jury came back with a $300,000 verdict.
Meyer laughed at the memory. "I was stunned, I was
stunned," he said.
This article has been reprinted with the
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Copyright 2004 Lawyers Weekly USA
