First, begin the process of getting rid of your anger and disappointment. Emotional involvement in the case varies depending on the facts, but you should consider it. Lawsuits not only cost money, they create stress. Most lawsuits are not worth your emotional and physical health. Many people involved in a lawsuit seem to believe the lawsuit is a life or death matter. In the long run, you will find that it is not. Most lawyers are not good therapists. You may need to consult a therapist if the emotional strain of a lawsuit is great.
Next, change your perception to view a lawsuit is a business deal. This is important. If you are looking for “truth, justice, and the American way,” rent a movie. The fact that you are 100% right (a rare position in spite of the fact that most parties believe that they have done nothing wrong and they cannot lose) only increases your chances of a favorable resolution of the dispute, it does not guaranty anything. Every lawyer knows that a trial is a gamble. Every lawyer can tell a story of going before a judge believing the facts and the law are so clear as to only produce one outcome and then to be surprised by the judge’s ruling. No case is a “sure thing.” This is why most cases settle.Settlement is (or should be) a business decision made after weighing the costs of going forward with the dispute and the probability of actually recovering money damages against the current settlement offer. Your lawyer should be your adviser on these factors.
Factor #1: Costs of going forward. Lawyers cost money. Realize that when lawyers advertise that “you won’t have to pay legal fees unless you recover” it is another way of saying “I won’t take your case unless I think it will make me money.” Your lawyer should be able to provide you with a budget breaking down legal fees into the various phases of a trial. A budget will help you decide questions like: do I settle now for $25,000 or do I pay $3,000 for the next phase and hope for a settlement offer of $30,000? As long as clients understand a budget is an estimate, a budget can protect both lawyers and clients by avoiding later confusion.
Factor #2: Probability of actually recovering money damages. A lawyer cannot ethically guarantee results. An experienced lawyer, however, should be able to provide you with a fair estimate of your chances of winning at trial. This advice helps you make a decision like this: do I settle for $20,000 when my lawyer says I have a 10% chance of getting a $100,000 recovery? In reality it is not that simple to come up with such a mathematical equation, but you get the idea.
Note the word “actually” in the bold phrase. Many people do not realize that the only thing a judge/ jury can give you is a piece of paper that says your opponent owes you money. If your opponent does not have 1.9 million dollars, you may get a judgment for that amount, but you will not be able to actually recover that amount. Accepting a settlement offer of a negligent driver’s insurance limits is a better decision than paying for a trial and getting a piece of paper that is worth no more than the insurance limits despite the fact that it says you are owed more.
Viewing settlement as a defeat or as “selling out” is a mistake unless your sole desire is to hear a judge/ jury say you were right and your opponent was wrong. This type of self-gratification is a luxury most people cannot afford. Remember: all cases should be settled- if the price is right.
Finally, learn the valuable lessons from this lawsuit and avoid the next one. Maybe this lawsuit is over a miscommunication that a few letters would have avoided. Create new systems in your business to document events and communications. Maybe this lawsuit was caused because you dealt with someone that you shouldn’t have. Establish a method of checking the background of the people with whom you work. Maybe you were too trusting and you didn’t get a signed contract. Resolve to never do work without a written contract that clearly states the duties of each party. Whatever the lesson is, learn it. Do not get so consumed with the lawsuit that you forget that when it is over, you have a life/ business to return to.
This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.