Domestic Diversions

Trial v. settlement: How often is a bird in the hand is worth two in the bush?

The New York Times reminds us that trial is inherently uncertain, a gamble that often does not payoff. The study to be published in September’s Journal of Empirical Legal Studies showed that 61 percent of plaintiffs who rejected settlement offers got less at trial and 24 percent of defendants who rejected offers paid more, leaving both sides right in choosing to go to trial 15 percent of the time.

Jonathan D. Glater writes (excerpt):
“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”

Several lawyers were dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge. They stressed the importance of a lawyer’s experience.


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