Elder-Law-Advocate

Settlement or Trial?

What’s better … settling your elder financial abuse case or taking it all the way to trial by judge or jury?

Most experienced lawyers (and nearly all judges) would advise you to settle your case … for many reasons. 

One, you could lose after spending thousands of dollars in costs and fees (filing fees, depositions, expert witness fees, etc.) and hundreds of hours of time invested in the case. 

Two, judges and juries are unpredictable.  There is only way way to know with certainty how your case will ultimately end up, and that’s to settle it with the settlement terms clearly written down and enforceable.

Three, you lessen the stress of protracted litigation.  Many clients fall victim to “litigation attrition”, meaning, they get burned out by the costs, delays and psychological burden of litigation.  Most clients are gung-ho at the beginning of their case but, after a year or more of litigation, become tired at the thought of continuing the battle.

Conversely, some financial abuse cases are so egregious that both client, and attorney, righteously refuse to give the defendant a break by settling the case.  They may both see the defendant as nothing more than the robber who got caught.  He’s not remorseful for the theft, but only sorry that he got caught.  He’s willing to give the stolen property back, but under terms that lessen his punishment.

Without a trial verdict and judgment, there’s no record of any wrongdoing.  No piece of legal paper that evidences the defendant’s rip-off of an elderly victim.  No admission of fault … nothing, except the settlement agreement where no liability is mentioned.

Sometimes, a trial is inevitable because no settlement offer is made by the defendant, or the defendant refuses to accept the plaintiff’s offer.  Under this scenario, settlement is not an option.

All of these factors must be taken into consideration in deciding whether to settle or try the case. 

Statistically, perhaps nine out of ten lawsuits wind up settling.  Some settle during the actual trial.    As evidence is presented, and direct and cross-examination (and re-direct and re-cross) is conducted, one side may feel that their case is not persuading the jury as initially anticipated, and therefore offer a settlement to avoid potential disaster.

From a plaintiff’s perspective, when the facts are good and it’s a chance to “fight the good fight”, then trial should be the sole focus from the inception of the case.  If you don’t believe that the case is meritorious from the beginning, then the odds of falling victim to “litigation attrition” are great.

What’s better … settling your elder financial abuse case or taking it all the way to trial by judge or jury?  Retain trial as the focus, and let settlement discussions come into play only after an honest and thorough evaluation of the factual merits  as they unfold through the discovery process.   As the old saying goes … bend but don’t break.

Elder-Law-Advocate