So what is your lawsuit exit strategy? You really only have two choices: go to trial or settle. Trial is hard, settlement is easy, but you are entitled to a trial, not a settlement.
Trial is the ultimate dispute resolution provider. You are entitled to trial as a matter of law and the judge or jury will make a forced decision in your case—like it or not. The problem, however, is that there are not enough courtrooms and not enough judges to conduct all the civil trials that need conducting. And endless discovery disputes often prevent cases from proceeding to trial as quickly as they otherwise could. So if trial is your ultimate exit strategy, you need to be prepared to invest the time, money and energy to get there.
Yet a vast majority of cases never make it to trial because they settle beforehand. I knew a lawyer who liked to say: “a bad settlement is better than a great trial,” how so? Trials are hard to come by, expensive, and the result is unknown. That’s not a great combination for a winner takes all scenario (trials usually are winner take all). In the words of Forrest Gump, trial is like a box of chocolates “you never know what you’re gonna get.”
Settlement on the other hand is knowable. You are in control of the result at settlement and you know exactly what you will get. The tradeoff if that you have to give to get in a settlement. Since settlements are not winner takes all, each side has to give a little. To me, it’s a bit like horse trading, everyone haggles for the best price. And oftentimes each side is a little unhappy with the settlement, which people say is a sign of a good settlement.
There are definitely times when a case must settle because the evidence is just not shaping up. But settlement should always be in the client’s control. You should choose if and when to settle, not your lawyer. We lawyers need to give you a clear picture of the good and the bad of your case, but then it is up to you to decide how best to proceed.
Unfortunately, there are many tough choices to be made in litigation. Deciding on a good exit strategy may be the hardest choice of them all.