Study: If You Go to Trial, Odds Are You're Making a Mistake

by Lee Gesmer on August 7, 2008

Litigation takes the place of sex in middle age.
Gore Vidal

I wrote in some detail almost two years ago about how trials can be very bad for clients. In the linked article I wrote:

Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.

Now, a study reported in the New York Times seems to find empirical confirmation for this. I quote from the article, linked here:

Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. . . .

In just 15 percent of cases, both sides [plaintiffs and defendants] were right to go to trial – meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered. . . .

Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial. . . .

“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial . . . .” The findings suggest that lawyers may not be explaining the odds to their clients – or that clients are not listening to their lawyers. . . .

Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.

Human nature being what it is, I don’t expect this to change anytime soon. After all, the fact that social scientists report that people tend to buy stocks when they’re high and sell them when they’re low doesn’t seem to affect most investors; the fact that half of all marriages end in divorce doesn’t seem to cause people to hesitate before getting married; and the fact that the odds favor the casinos doesn’t stop people from betting at the casinos. And so it goes ….

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