I still think of myself as a young guy and a young lawyer, but I admit that my self-deception crumbles when I look in the mirror, and when I recall that several Presidents have come and gone since I graduated from law school. I have been practicing law for nearly thirty years – with much of that time as a litigator in state and federal courts. Through the years, I have come to strongly believe a notion that is scoffed at by most hardened trial lawyers: it is always time to try to settle a dispute.

I had “old school” litigation mentors. They were smart, tough, and accomplished trial lawyers that ate raw meat for breakfast.  They never wanted to appear “weak” to their adversaries. Mentioning settlement to the “other side” was a sign of weakness.  As Plaintiffs, they fearlessly drove cases forward and kept demands high all the way to the court-house steps and sometimes beyond before making any reasonable concessions at the last minute.  As Defendants, they never used the limits of their authority to settle, and responded to settlement demands with more discovery requests, depositions, or motions to dismiss the case.

It is therefore no surprise that for many years I practiced and upheld these “old school” traditions.  But times have changed.  The cost of such gamesmanship is too high today, and based on some of my personal experiences, I question whether any of the bravado was ever really effective, or achieved results that could have been achieved in a more economical manner.

The Phoenix Business Journal reported that in a survey conducted by the U.S. Department of Justice in 2004, it was found that 97% of all civil cases settle.  This finding is consistent with my personal experience – the overwhelming majority of my cases settled.  The hard reality is that your case is most likely never going to get to trial.

It isn’t a matter of “if” your case will settle – the question is “when” it will settle.  This truth, together with the sky-rocketing costs of litigation, the uncertainty of putting a dispute in the hands of a judge or jury, and the explosion of alternative dispute resolution resources now available, leads to the conclusion that achieving a favorable settlement should be the primary goal in the litigation plan of any legal dispute.

A good trial attorney should be very familiar with mediation and arbitration, and should at least have some formal negotiation training and experience. He or she should discuss settlement goals and how to achieve them with every client.  As a client, you should bring settlement to the fore-front of your lawyer’s attention.  Spend your money wisely!

It is occasionally necessary to practice “gunboat diplomacy.”  Sometimes you will have no choice but to press your adversary from a legal standpoint and take a hard line – written discovery requests, depositions, and motions are often needed to bring a recalcitrant opponent to the negotiating table.  But litigation wrangling as an end in and of itself should never happen.

Attorneys should not go on autopilot, immediately go on the war path, and start churning the file with expensive discovery and trial preparation just because it’s what they do best. Clients need to be realistic and accept that a negotiated settlement will likely be their most economical alternative with the highest probability of achieving a successful outcome.  Try to resolve the case, or at least as many of the disputed issues as possible, instead of immediately adopting a costly “scorched earth” approach.

Your day in court probably isn’t going to happen, so check your ego, swallow your pride, and develop a settlement-centered litigation plan.  In the end, it is likely to be your best alternative…