This way, you can avoid having to pay extra expenses until your last day in court. On the other hand, reaching an agreement could put you at a disadvantage. Accepting a settlement may result in you receiving less money than you would receive if you went to court. Your lawyer will help you determine if it's worth spending more time and money going to trial. To quote Yale law professor, Owen M.
Fiss, in his famous article published in The Yale Law Journal entitled “Against Settlement”, like the negotiation of a guilty plea, the agreement is a capitulation to the conditions of mass society and should not be encouraged or praised. In fact, there are people who take a principled approach to everything, and not just demands. They have so many principles that they will return all the hamburgers they order if they don't contain ham and they haven't started eating sausages, since the word is an inherent lie. These people have so many principles that they will also return income tax refunds to the government because, in the first place, the right amount of tax should have been deducted.
In addition, it seems to me that, as a matter of principle, most people who are involved in a legal dispute are not usually “skeptical” to reach an agreement. Fiss's views are not the most popular. In most of my mediations, the litigants (the parties) and their attorneys prefer to reach an agreement before the trial (regardless of what they may think before the mediation or in its early stages)). There is only a big gap between the settlement positions of the opposing parties to the dispute.
Therefore, it is vital to have a simple, but useful, way of verifying the reality to determine if the gap should be as wide as it is and if it can be reduced to the point where it is possible to find a solution with my help. Usually, most cases move (very) slowly toward being brought to court. The main reason is that our courts are behind schedule, and things have only gotten worse in recent years with the COVID-19 pandemic and the scarcity of judicial remedies. When detractors complain that the agreement is “a capitulation to the conditions of mass society,” they are partly rejecting the idea that we must resolve our legal disputes because it takes a long time to get to court.
However, while the government appoints more judges and allocates more money overall to the civil justice system, it could mean that trials are held sooner, trials will never be held soon enough for the average person. Pre-trial processes, such as the presentation of evidence, motions and pre-trial meetings, have yet to be addressed. Lawyers are very busy and the trials themselves can last for days or weeks (and some last for months). In addition, there is time to prepare and meet lawyers, clients and other witnesses for preliminary and trial proceedings.
Most attorneys will agree (yes, from time to time they agree on some things) that for each trial day there are between one and three days of preparation. While attorneys don't care about this, their clients shy away from other things they can do with their time. It also costs them a lot of money (see below). Therefore, time is and should always be a reason to reach an agreement, and reaching an agreement early (such as in mediation) will usually result in greater time savings.
In addition, if you lose in court, the court may order you to pay the other party's legal expenses (“costs”). Another possibility is that you will have to pay your own lawyer as you go and, in fact, you win, but the court decides that everyone will bear their own costs, since they can do so. You'd better hope that you'll at least get back what you paid your lawyer. Experienced attorneys can tell you about cases where “successful clients recover less than their legal bills” (and if they don't, I can).By reaching an agreement, you control monetary and non-monetary costs, thus avoiding these unpleasant surprises later on.
By the way, don't expect judges to be kind in their reasons, regardless of the outcome. For example, take a look at this decision. Toronto lawyers know her well and she also received extensive media coverage at the time of publication. After reading it, ask if you would like a judge to write similar things about you, especially when you are part of the public record in perpetuity. However, agreements made before trial or other court events are generally private.
Those not directly involved in the case rarely, if ever, know the terms of the agreement. In addition, the parties to an agreement do not usually recognize any type of liability (liability is almost always “expressly denied”), even if payments are made from one party to another. While publicity cannot dissuade determined litigants from going to court, they should at least consider publicity as a necessary by-product of the judicial process, well in advance, to be able to weigh the value of their privacy and their protection against humiliation before deciding to pass up the opportunity to reach an agreement. They are, by nature, final binding contracts and are not subject to appeal like court decisions.
Once the dispute is over, you can leave it behind and move on. Is it better to resolve the dispute or lawsuit, or continue with it indefinitely despite the risk, the time involved, the cost, and the lack of privacy, creativity and firmness? For some people, risk and cost will not be compelling reasons to reach an agreement under the conditions proposed by the opposing party, implying that the case is riskier and that your trial will be more expensive (assuming that an honest and serious evaluation of the risk and cost, along with the other reasons, has been made with the help of your lawyer and mediator). However, the remaining six reasons may make it convenient to reach an agreement under the same conditions. In fact, any of the 6 reasons may be sufficient reason to resolve a particular case at a particular time, depending on the person and their individual needs.
However, if you continue to believe that “you should never settle for principles”, at least you have put your principles to the test. You will continue the litigation without misunderstanding what the civil justice system can and cannot provide. That said, I suspect that he has other motivations for taking a case to trial besides “principles”, but those motivations will be the topic of a future blog. This blog is for educational purposes only and is not intended as legal or other professional advice.
Resolving a personal injury case reduces the costs of a claim for both parties. In fact, most of the savings come when the parties reach an agreement long before the trial so that lawyers can avoid some of the expenses mentioned above. However, cost savings don't always matter when liability is unclear and attorneys don't yet know the full extent of their clients' injuries. If you were involved in a car accident and are not sure if you need to reach a settlement or go to trial, contact an attorney with experience in Helping The Hurt.