This Court (of Public Opinion) is now in Session


Hollywood producers know this constant: America loves a good courtroom drama.

Who can forget Gregory Peck's performance as Atticus Finch in 1962's "To Kill a Mockingbird"?

Who can forget Gregory Peck's performance as Atticus Finch in 1962's "To Kill a Mockingbird"?

We loved Gregory Peck’s Atticus Finch in “To Kill a Mockingbird”, Spencer Tracy’s Clarence Darrow in “Inherit the Wind” and Tom Cruise’s Dan Kaffee in “A Few Good Men”, and we scheduled our weeks around the courtroom appearances of the lawyers of “Perry Mason”, “The Practice”, “L.A. Law” and “Ally McBeal”.

If you watch enough of these lawyers in film and television though, you’d assume a good lawyer is always in court. In real life, the opposite is true.

Because litigation is so incredibly expensive, the best lawyers are the ones who can avoid taking a case to trial.

In today’s New York Times, Jonathan Glater has a story about a new study of civil lawsuits which shows that it often makes more financial sense for both plaintiffs and defendants to negotiate an out of court settlement, rather than to pursue a final jury or judge’s verdict.

Glater wrote that the study, which was co-authored by Randall Kiser of DecisionSet, a litigation consulting firm, and the University of Pennsylvania’s Martin Asher and Blakeley McShane, “…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. ”

Attorney Gloria Allred (far right) knows better than most the value of pursuing a case in the court of public opinion. Pictured with her are "Judge" Larry King and Plaintiff/Spice Girl Melanie Brown on CNN.

Attorney Gloria Allred (far right) knows better than most the value of pursuing a case in the court of public opinion. Pictured with her are "Judge" Larry King and Plaintiff/Spice Girl Melanie Brown on CNN.

How much money are litigants leaving on the settlement negotiations table? According to this study, plaintiffs walked away from an average of a sure $43,000, but defendants made much bigger mistakes — they left behind an average of $1.1 million.

One thing the study didn’t calculate was how the choice of whether or not to take a case to trial will impact a company’s corporate reputation.

That’s something any business should consider, but few do before the company’s legal team tells guys like me to utter this overused and tired public relations phrase:

“We have reached this settlement to avoid the expense and distraction of protracted litigation.”

As plaintiffs and defendants become more sophisticated in their litigation PR strategies, isn’t it past time for this to change?

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One response to “This Court (of Public Opinion) is now in Session

  1. The notion that litigants who persue cases in courts get less settlement on the average is very interesting!
    This has many sides to it, first of all how can auther be so sure in presenting the study, that a MOST decisions will fall under this catagory of VAST Majority, each case is different in nature as well the circumstantial placement that surround the case.
    Secondly, as the author admitts that the peculier factors such as the judge presiding, the attorney’s experience and most importantly, the jury selected to hear the case, has everything to do with the final out come of the decision, which cann’t be rested on the cognitive behavior(s) of one or two people who decide to take the case to trial or not. The diagram shown in the article also shows that on the average people leave behind about $43000 on the table while relatively smaller settlements are concerned, at the same time cases involving BIGGER high profile cases should be taken to court, as the defendant will most definitely offer much less at the settlement, about 1,140000 less, bigger the case, bigger the chance the offer will be less at the settlement! Comments welcome!

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