The Art of Advocacy

The September issue of The Journal of Empirical Legal Studies will include a report on the risk/reward calculus of going to trial versus settling, and last week’s New York Times story on the subject has predictably excited fans of the latter option. (See Robert J. Ambrogi’s post on Legal Blog Watch.) Though I have not yet read the study in full, I have to take a moment to question the logic of those who see this news as a discredit to the institution of trial-by-jury.

According to the Times story, the researchers looked at 2054 civil cases that went to trial in the state of California between 2000 and 2005. In 61 percent of the cases in which the plaintiff rejected a settlement offer and went to trial or arbitration, they came out with less money than they would have had the taken the opponent’s offer. In 24 percent of the cases when the defendant rejected a settlement offer and went to trial/arbitration, they were forced to pay more than the plaintiff had requested. According to the Times, the “clear lesson” for plaintiffs is that it’s better to make a deal than fight.

The lesson is far from clear. Lawsuits are as individual and idiosyncratic as the people involved in them. To take a sample set of 2054 cases in one state and try to generalize for all litigants is to engage in logical fallacy. And we should acknowledge the study’s implication that 39 percent of plaintiffs in this set and 76 percent of defendants fared better by going to trial.

Obviously, it is often wiser to settle than fight, but the slim body of evidence collected on this subject should not be the foundation for decision-making. When push comes to shove, the risk/reward calculus is largely about the specific case and its unique circumstances. Good trial lawyers will advise clients well in working through these difficult decisions. If a sample set of plaintiffs did not fare well statistically, we should realize that innumerable determining factors were involved. The lawyers may have misjudged their cases and, in some instance, might not have had a wealth of trial experience. The Times article duly notes that the vast majority of civil cases nationwide do, in fact, settle, which means that many trial lawyers have rare opportunities to hone their skills (see post below!). But if any litigant--plaintiff or defendant--has a strong case that has been well prepared by excellent attorneys, studies like this should not interfere with a prudent and judicious evaluation of the specific situation at hand.