| A very important recent study has shown that, | | | | wrong. When defendants are wrong, it costs |
| for plaintiffs i.e. the person who files the claim, | | | | them an extra $1.1 million. However, when |
| settling is better than going to trial. | | | | plaintiffs are wrong they are penalized a mere |
| "The lesson for plaintiffs is, in the vast majority | | | | $43,000. |
| of cases, they are perceiving the defendant's | | | | As a practicing attorney, I can say that these |
| offer to be half a loaf when in fact it is an entire | | | | numbers are probably high when compared to |
| loaf or more," said Randall L. Kiser, a co-author of | | | | Utah verdicts as our juries number among some |
| the study and principal analyst at DecisionSet, a | | | | of the more conservative in the country. |
| consulting firm that advises clients on litigation | | | | Jeffrey J. Rachlinski, a law professor at Cornell, |
| decisions. | | | | believes, "Most of the time, one of the parties |
| Most of the plaintiffs who said "no way" to the | | | | has made some kind of miscalculation or mistake," |
| final settlement offer and went to trial ended up | | | | "Most clients think they are completely right," |
| getting less money. | | | | Michael Shepard, a lawyer at Heller Ehrman in San |
| Only 15 percent of the time were both sides | | | | Francisco. |
| correct in proceeding to trial. In the other 85% it | | | | After representing injured persons for 20 years |
| was the plaintiff who was wrong the most: in | | | | here in Utah I've found that the following |
| 61% of cases. Defendants were incorrect in | | | | technique aids greatly to assist the client to make |
| proceeding to trial just 24% of the time. | | | | the right decision about whether to settle or try |
| Many practicing attorneys will concur with these | | | | the case. |
| findings. "We've all seen cases where the personal | | | | I ask the client to imagine being a juror along with |
| injury plaintiff should have settled but did not and | | | | seven others from the county where the |
| ended up worse at trial. It's like the Kenny Rogers | | | | accident took place. The jurors are registered |
| song: 'you have to know when to hold them, | | | | voters in the county. They are deciding a personal |
| when to fold them, when to walk away and when | | | | injury case much like the client's. The injuries are |
| to run,'" says Utah injury attorney William | | | | the same, as is the treatment, the amount of the |
| Morrison. | | | | medical bills and the lost income. |
| According to informed estimates most court | | | | Here's the question I pose: What would you and |
| cases do settle before trial-(these estimates | | | | the other jury members award that hypothetical |
| range between 80 and 92%.) | | | | person? |
| Kiser's study was based on 2054 cases that went | | | | In nearly every case where I have done this, the |
| to trial between 2002 and 2005. The study, which | | | | client has come up with a case valuation number |
| was published in the September issue of the | | | | that is very close to what a jury would likely |
| Journal of Empirical Legal Studies, suggests that | | | | award. And, if the final offer from the other side |
| mistakes were made most often in cases where | | | | is at or above that number then it's time to |
| the lawyer was paid a contingency fee. | | | | settle. |
| Of interest, is the relative cost for getting it | | | | |