A couple of weeks ago, I wrote an article about how sometimes clients need to duke it out during litigation before they can bury the hatchet and settle a matter. Some people expressed views of the article on social media, and one commenter said that the piece left out the fact that sometimes lawyers might resist earlier resolutions since they can earn more fees if cases progress. This was an interesting point, and it made me think about times in my career when it seemed that attorneys had an impact on whether or not a case settled even though the decision is ultimately in the hands of a client.
Lawyers can have a powerful impact on whether a client decides to litigate a case or finally resolve a matter and move on with their lives. In most instances, clients look to lawyers in order to surmise whether their case has merit and if they will succeed in court. In addition, clients oftentimes ask their lawyers to estimate the amount of money it would cost to keep litigating a case throughout various stages of the litigation so clients can make informed decision about whether it makes sense to settle a matter. When clients ultimately make the decision of whether they should resolve a matter, they rely heavily on their counsel since lawyers have likely handled numerous similar cases in the past and might have insight as to whether settling makes sense.
In my experience, if a lawyer has easy billing on a matter, they might not be too inclined to settle a matter. For instance, during discovery, lawyers typically need to spend a substantial amount of time reviewing documents and propounding discovery demands. During this period, lawyers often also need to depose witnesses and issue subpoenas to nonparties involved in a case. This can be a billing bonanza to a firm, and many of these tasks are not that stressful for lawyers.
For instance, when I needed to handle medical records review or some other aspect of document discovery while I worked as an associate at various law firms, I usually rejoiced. I knew I would be guaranteed a substantial amount of billing, and I did not need to deal with the stress of court or the minutiae of drafting and filing litigation papers. During this period, lawyers might not have much incentive to recommend settling since they have easy billing and they might not want to pass up the chance to perform this easy work if a case settles early.
However, at later stages of a litigation, lawyers often need to complete stressful and tedious tasks. For instance, after discovery is complete in many cases, parties need to consider filing summary judgment motions. This is associated with a number of unpleasant tasks. Legal research and writing is often not as easy as reviewing documents and citing to exhibits, creating tables of authorities, and other tasks associated with summary judgment are not appealing to many lawyers. Summary judgment motions often require lawyers to argue before a court, which can be a stressful experience for even the most-hardened lawyers. After all of this work, a lawyer might lose a summary judgment motion, and it might be difficult to explain to a client.
In my experience, lawyers are much more likely to recommend settling cases when easy work on a file has dried up, and the lawyer knows that they will have to perform tedious tasks if a matter continues for much longer. This could possibly explain why some many cases settle toward the end of discovery and before dispositive motions are filed. Of course, it could be argued that after much of discovery is complete, the parties know significant amounts of information about a matter and can best make a settlement decision. Furthermore, hoping to avoid the substantial costs associated with writing and filing dispositive motions could be one of the reasons why many cases settle at this stage. However, I would not be quick to discount the fact that lawyers might recommend settlement when they know a gravy train on a case has concluded and there are tough tasks ahead.
In any event, lawyers should be more cognizant about how their own interests might impact their suggestions to clients about whether it is wise to settle a case. Although it might be hard to pass up easy work, if there are no other reasons why a matter should not settle, lawyers should be more wiling to recommend settling a matter.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at email@example.com.
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