To try, or not to try – that is the question…
I’m no Shakespeare, but if you have ever found yourself staring down the barrel of an impending trial date with no clear answer about whether ‘tis nobler in the mind to suffer the slings and arrows of outrageous fortune (go to trial), or to take arms against a sea of troubles, and, by opposing, end them (settle the case), then this piece is for you.
When should you settle a case?
There will always be cases that unquestionably need to be tried. Putting those aside, the vast majority of cases, if handled correctly, present the trial attorneys and clients with the power (and responsibility) of choice. Inevitably, we find ourselves faced with the decision of whether to invest in trial, and roll the dice, or accept the best settlement offer and be done.
To effectively weigh this decision, we must grapple with the difficult task of projecting not only the costs of trial, but verdict range potentials, ramifications stemming from 998s, etc., all while providing sound counsel to our clients, to help ensure the most favorable outcome.
Overwhelmingly, I find that there is a misconception about just how costly it is to take a case all the way to trial.
Spoiler alert: trial is expensive.
How much does it cost to try a case?
This is not meant to scare you into avoiding trial. As mentioned, some cases need to be tried, and you owe a duty to your client to invest accordingly. However, everyone should be mindful of the costs associated with trial, because at the end of the day, one of the most important considerations we must all make is whether our actions and investments are increasing our client’s net number. If we are spinning our wheels, walking aimlessly into trial without a clear understanding of how much we will be spending and whether it is likely to increase our client’s net number, we are failing our client.
The reality is that most “routine” auto cases will cost you $100,000-$125,000, by the time you finish the trial (and that number will double, triple or quadruple, when it is a more complex case). You may think that seems high and that you will be able streamline things to shave that number down, but I am here to shatter your dreams and tell you, honestly, that this is the expected costs range for 90% of the “simple” trials you will handle.
Why is it so expensive to go to trial?
The shortest answer is this: defense firms have big insurance companies backing them and funding their war chest, and what that means for your trial is that defense will designate every expert under the sun to try to wash out your case, and while you may not need to counter all of their experts, you will certainly need to counter most.
Even what appears to you as a “simple” auto crash case will not be simple by the time you get to trial, because defense will take every opportunity to over-designate and dispute every aspect of your case. Accident reconstruction and biomechanical experts on a simple rear-end crash? You betcha. Defense is going to retain them. These experts are very costly, and again, this is simply not something you can ignore – you will have to counter and retain your own experts, and this will easily cost you $50,000 to $75,000, all for a “simple” auto case – even when it is admitted liability.
Costs of experts for trial
On top of that, you will have your ortho or neurosurgeon – including all their prep work leading up to trial, plus testimony at trial – and the cost of deposing the defense experts. Another favorite defense strategy, especially in a post-Pebley climate, is the billing expert, so be prepared to have to retain your own billing expert (although you may feel confident that your orthopedic or neurosurgeon can competently counter their billing expert). The numbers add up quickly, and before you know it, you are looking at six figure costs, and that is not even including the costs you incurred during the course of litigation, prior to even ramping up expert discovery.
Like anything in life, you get what you pay for. If you scrimp on experts, sure you can still possibly win your case, but this is a dangerous game to play, because the gamble is made with your client’s money. On the other hand, if you allow yourself to get too loose with the trial costs – unbridled experts, demonstratives, etc. – you may end up whittling away at your client’s net. There are few feelings worse than trying a case, prevailing, and still delivering a net result to your client that is less than what she would have recovered if she had accepted the defense’s last and best settlement offer before you reached the point of no return and decided to try the case.
Understanding & estimating trial costs
The conversation with your client concerning net expectations needs to happen early, and often. By knowing your client’s “bottom line” you can help navigate the murky litigation waters and explain to your client what their net number looks like if they accept the settlement offer, and what the net result might look like if we hit for x, y or z at trial. In every conversation, the client should be informed of the current costs, projected future trial costs, and of course, the ramifications of winning or losing on respective 998s, and what that wildcard can mean for their potential net.
These are complicated, often difficult projections to make. Above all, do not be too proud to reach out to other trial attorneys to pick their brains and seek their input on your case value potential, and the ultimate decision of to try or not to try. At the end of the day, the only thing trial nerds love more than going to trial is talking to other attorneys about their trials. There is not always a clear answer on whether to try or settle a case, especially in light of these fluid variables, but if you approach the decision with a candid and careful assessment of costs, verdict potentials, and net recovery projections, you are on the right path.
Written by: Jenny Anglin