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Settlement vs. Trial - How Do We Get To a Win/Win?

How does one determine which cases to try vs. settle? What are the potential consequences of proceeding to trial? What are some things to consider to optimize the outcome? For answers to these and other questions, click on the blog post link.

Statistics show that approximately 95% of all civil cases are settled pretrial, leaving roughly 5% in the hands of a jury. Why not settle every case and avoid the time and expense associated with trial preparation and the risk of letting a jury determine the client’s fate? Hold on, we can’t ignore the cases of questionable liability and/or outrageous demands. Clearly, some cases must be tried! So how does one determine which cases to try vs. settle?

One way is to consider the potential consequences of going to trial and losing against the obvious benefits of winning.

Let’s start by reviewing the potential consequences of trial if you lose:

  • Runaway Verdict (Surplus Erosion)
  • Pre & Post Judgement Interest
  • Plaintiff Attorneys’ Fees & Costs
  • Defense Attorneys’ Fees & Expert Costs
  • Cost of Appeal (Risk of making bad law)
  • Negative Media Attention (Reputation)
  • Client Dissatisfaction

What if you try the case and you win:

  • Surplus Protection
  • Discourage Plaintiffs’ Bar from bringing other claims (“me too” claims)
  • Defense Attorneys’ Fees & Expert Costs
  • Cost of Defending Plaintiffs’ Appeal (Risk of making bad law)
  • Positive Media Attention (Reputation)
  • Client Satisfaction

So even if you win the case at trial, you face the costs of defense, the potential cost of defending plaintiffs’ appeal and the risk of making bad law.

Many times the costs associated with trying a case to verdict, even if you win, can exceed a pre-trial settlement. What a buzz kill! This explains why 95% of the civil cases are settled.

At Genesis, in order to support our clients and obtain the best possible outcome, while protecting surplus and reputation, we suggest you consider doing the following*: 

  • Evaluate your case early. (Unlike fine wine, cases don’t get better with time.)
  • Request defense counsel’s closing arguments early in the case.
  • Know the facts, law, venue, judge & potential jury pool.
  • Be mindful of media attention.
  • Partner with defense counsel to formulate the strategic litigation plan.
  • Prepare the case as if you are going to try it because you might, and you want opposing counsel to believe that you will.
  • Keep stakeholders apprised.
  • Utilize respected and effective mediators at key points in the case.

Your insurers and reinsurers may have national experience and can offer knowledge for a specific claim.  They may also have resources that specialize in an area where you lack expertise. We’re here to help you.      
* Before making any decision, you should seek legal guidance from your outside counsel.


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