Every day I am faced with advising clients on the risks associated with trials. Whether the case is civil or criminal, at some point you face this question: Should you go to trial or accept a settlement? The thing about settlement – as our esteemed Congressmen and women would be happy to tell us today ("economic meltdown averted") – is that EVERYONE walks away from the table wondering how much more they could have gotten. And – as we frequently tell our clients – everyone walks away feeling like they got screwed. Sorry to say it, but it is true. Everyone.
But what about the risks of trial? Consider these three:
The first risk of trial is predictability. When you go to trial in any case, civil or criminal, you are asking a jury to decide what set of facts existed at the relevant time. Was the defendant driving under the influence of drugs or alcohol? Was the plaintiff injured as a result of the defendant’s negligence? How fast was that truck going?
You see the job of the jury is to find the facts underlying a case, and then to apply the law to the facts and render judgment. Juries are not predictable. They are not generally trained for this task and often they get lost in the details of the case. They may look at a "fact" that is obvious to you and not believe it to be what you believe it to be. By way of example, in a case I tried a couple years ago, the question before the jury was whether a young woman had consented to sexual activity with my client. My client testified about their ongoing relationship, their having lived together, the circumstances that evening, and eventually "the act" having occurred at her apartment. The jury did not believe the young woman had voluntarily consented to sex. Even with all of our "proof," the jury went the other way. Juries are inherently unpredictable.
The second risk associated with trial is attorney performance. I hesitate to mention this but not all attorneys have similar experience or abilities. Some lawyers believe that misdemeanor criminal experience is the same as trying felony cases. Nonsense. I looked at a website from a young attorney the other day who was playing up a dozen or so misdemeanor jury trials – many of them resulting in not guilty findings. Misdemeanor battery is not the same as felony aggravated assault. DUI is not the same as manslaughter. The skills needed to try a misdemeanor cases are similar, but the experience is not the same. And then there is the actual performance problem. That "hot-shot" trial lawyer can have a bad day, or even a bad witness. It happens to all of us. Prepare as we will, it does not always go our way. Trials are fluid – we have to react to rulings by the judge, changed testimony from witnesses and reactions of jurors to our story. Lawyer performance at trial is also inherently unpredictable.
The third risk is client performance. A client is on trial from the moment he or she is first gawked at by the jury. The client is under a magnifying glass. How he or she dresses, gets to court, walks from the parking lot to the court house, and reacts to testimony – well – the jurors are watching it all. And then there is the "should the client testify" issue that we face in every criminal case. In a wrongful death or accident case the issue is likely "when" should our client testify and how will he or she do under cross-examination. Clients at trial are inherently unpredictable, too!
So in the face of all this uncertainty a settlement of the case can be very appealing. A settlement produces a result – and eliminates the uncertainty. So should you go to trial?
Times a wasting and I must go to a client meeting, so I will follow up on this tomorrow – but until then – think of other ways in which the average case can be "unpredictable." How about the unpredictable nature of that judge? Black robes do not make you more predictable! And jury instructions. After thirty years I still think they are often incomprehensible. And juror experience? Nothing trumps experience! So the jury trial is full of unpredictability!