It’s All In The Game
Saturday, June 05, 2021
Chess is a game.
Tennis is a game.
So too is litigation a game.
These are games of skills, risks, chances and have uncertain outcomes and duration.
Lawyers tell clients that there are no guarantees in cases as in life. Good cases can be lost, and bad cases can be won, and that is why there are appeals. Judges and arbitrators can make mistakes of judgment, misapply the law, or mistake the facts. This is something to be understood and appreciated in all cases.
The good news for clients of lawyers, unlike patients of doctors who sign informed consents before procedures is that no one can be paralyzed or die as a result of the legal procedure as can happen in the medical procedure.
Like tennis where the ball goes back and forth, in litigation the offers and demands go back and forth until the game ends or the case is settled or tried. The parties need to understand the often changing offers and demands in legal claims and proceedings are part of the game and to be expected rather than be surprised or disappointed with the time that passes in between the demands and offers of settlement.
It is very seldom that a criminal defendant would plead guilty at the arraignment (first appearance). Likewise, rare that a party offers their best or final offer at the outset, but rather hold back and hope the other side will accept the offer or counter for a better amount than the final limit on authority. Insurance companies and defense firms are famous for this. They have an old saying “delay the trial and bill the file”. Consumer advocates and claimant’s attorneys would prefer to settle sooner than later.
Litigation involves negotiations. Like buying or selling a house or car or business, etc., there is the price game. Sometimes the price or offer really is firm and may be lost if not promptly accepted. Most often there is much flexibility in the figures. This too is part of the game and inherent uncertainty in life.
It has been said that the best settlement is where both parties are not fully satisfied or unhappy since they went somewhere in between of what each hoped to pay or receive. That is often better than the risk, trouble, and expense of going to trial or appeal where there will be only one winner and one loser and where rather than both parties being somewhat disappointed, one will be happy and the other sad with the result. Settling buys peace, certainty and ends the litigation.
Hopefully with the correct preparation, the game ends well.
