Depending on the type of case you have or the circumstances of your case, you might have to make a decision about whether to settle at some point along the way. This point can come right at the beginning of the case, the middle of the case, or even during trial. It can come up more than once during the process. When it does come up, every attorney hears the same question from her or his client: "Should I settle?"

That three word question is loaded with ramifications. It’s no wonder the client asks for our advice. After all, we see these situations all the time right? Well, yes and no. Yes, we see settlements come up during cases frequently, and we regularly negotiate settlements. But we never see the exact same set of circumstances more than once. That’s why there are many factors that go into whether you should settle or not.

First, there are the facts of you case itself. Sometimes the facts of a case are heavily in favor of the plaintiff (generally, the person who initiated the law suit) and so that gives the plaintiff power in the negotiations. Having power often means you don't have to accept the first offer made. But sometimes the facts are not so favorable to the plaintiff. A single change in a factual scenario can make all the difference in the world with regard to the strength of a case. Oftentimes a defendant will “lowball” the plaintiff to see if they can get away with ending a case for little money.

Another variable to consider is your individual risk tolerance. Some clients cannot afford to risk walking away from what is being offered. You may need the settlement to pay immediate bills, or you may not be able to handle the stress of a long, drawn out trial preparation situation. You may be ill and may be concerned that you won’t be in a position to support yourself through the trial to help us get the best result. Sometimes, family members’ situations must be taken into consideration when making these decisions. Some people are only comfortable following that old adage: "A bird in the hand is worth two in the bush."

Another factor to consider is other settlements that were reached in similar cases. An attorney who works in a certain area of the law (consumer rights litigation, for example) will get a general feel from working on certain cases, about the type of settlement that can be reached based on the facts of the case. If the defendant is offering one of those lowball offers, this attorney should be able to recognize it and point out that there may be a higher offer available with some negotiation.

Recent jury verdicts and damages awarded in similar cases in your jurisdiction may have some bearing on whether a particular settlement offer is reasonable or not. We track the latest developments in jury verdicts to see what dollar figures we may be dealing with if a certain type of case goes to trial. If we see that juries are becoming more sympathetic to, say, debt collection abuse cases, these debt collectors may be more motivated to settle claims rather than allow them to go to trial in front of these sympathetic jurors.

Whether you should settle your particular case is an impossible question to answer in this article due to the all the complicated variables that must be considered. However, if you are faced with the situation of whether you should settle your case or not, it is highly recommended that you discuss with us all of the issues raised by this article so that you can make an educated decision. Remember, it’s always your decision whether to settle or not. We cannot make the call for you – we can only advise you of your options and make recommendations. This is still the case, even if your lawsuit has been taken on a contingency fee basis by us.

At Hyde & Swigart, when we are faced with a settlement offer, we take all the above factors into consideration and help you make a decision that makes sense for the you, not our firm. Never be afraid to discuss your concerns with us, and always make sure you are making decisions that make sense for you. You don’t want to look back on your case some day in the future and regret decisions you made that were hasty or uninformed.