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