Monday, May 12, 2014

When Should I Settle? When Should I Go To Trial?


Most cases can be resolved outside of court. There is a lot to be said for the settlement process. I will advise my clients to settle with a reasonable settlement offer when cost is an issue. A case that is litigated through trial will likely cost $15,000 or more per party. This is money that the parties could use in their pocket or they may not have.

Another benefit to out of court settlement is that you maintain some control in the outcome and pace of the case. It is always risky having a judge make the decisions regarding your case. Even after the evidence is presented at trial, the judge will have their own concerns and biases. Parties who settle a case can have some control of the outcome. They have a say in the resolution of the case and are not leaving it in the hands of a stranger to decide. Although there is clearly some compromise, most parties will walk away from a successful mediation or settlement feeling good about their decision.

Finally, many parties see the benefit in the flexibility and creativity that settlement allows. Settlement allows for more creativity in the outcome as well. The parties know what is most important to them, and can draft the settlement documents in ways that a judge would probably never consider because they don’t have the time and resources to devise the orders in that way. In a settlement, you can consider and propose many different options.

Some cases do need to go to trial. For example, when a party attempts bullying tactics or when there is a power imbalance that is residual from the relationship, often it is necessary to go to trial because settlement talks will often lead to nowhere. In addition, an opposing party who is uncommunicative make it impossible to even discuss negotiations, and so trial is most certainly necessary.

There are situations when you are faced with an opposing attorney who is combative. They may have their reasons for being overly aggressive—perhaps that is their personality, it may be the personality that their client wants to represent them, or it may be that they are after higher billable hours. Either way, it will be very difficult to negotiate with this type of attorney, and going to trial may be the best way to allow yourself an opportunity to be heard.

Finally, it is sometimes best to continue litigating when you stand to gain more in court than what is being offered. This is generally a cost-benefit analysis given that going to trial can cost at least $15,000 per party. However, the risk is sometimes worth it if you believe the law is in your favor.

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Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more. 

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