The risks of rejecting a settlement offer before trial
Hi, I’m Jared Richards. I’m one of the attorneys here at Clear Counsel Law Group. One of our readers has asked: What are the risks if I don’t accept a settlement offer before trial? I don’t know who this reader is. It’s anonymous, but I would tell you talk to your attorney. This is a very case sensitive question and it completely depends on your case, but as a general matter, I would say this: it depends on the case.
There are certain risks that are inherent in every case. That has to do with the jury. Juries can be erratic. They can be unpredictable. A jury is generally made up of just general citizens. Some of them have a better understanding of the law. Some of them have less understanding of the law. Some of them have a worldview that is going to line up with your worldview, and some of them are going to have a worldview that in no way lines up with your worldview.
Any time that we take a case, even if it’s a very strong case, and we present it before a jury, there is a risk, sometimes a significant risk, that a jury is not going to see it the way that we see it. One advantage of accepting a settlement before trial, or at least specifically before you have a jury return a verdict, is at least you know what you’re getting. It’s the old phrase “A bird in the hand is worth two in the bush.” Settlements are good because we know what we’re getting.
Now sometimes the parties, the defendant and the plaintiff, just cannot see eye to eye and are nowhere near settlement. The plaintiff thinks that the potential value of the case far exceeds any settlement offers on the table. At that point, yeah, maybe you need to proceed to trial. There are two other risks that you should look at when you’re rejecting a settlement offer that’s going to force you into trial.
Risk number one is cost, your costs. Going to trial can be very expensive. Depending on the case, it can mean spending sometimes tens of thousands of dollars, sometimes more, on expert witnesses, bringing them in, having them testify. Experts can be terribly expensive. Let’s say that you do get more than you were to get in a settlement. Again, this is where we get very case specific. Depending on what the judgment is from the jury, you may find yourself actually putting less into your pocket than if you had accepted the settlement, because you have the cost of a trial.
Now let’s talk about the cost of losing. The cost of losing means that you might be subject to the other side’s costs. Heaven forbid, you might even be subject to their attorneys’ fees. You can talk to your attorney about offers of judgment, and we’ll have those in another video. Again, this is where it’s very case specific, but if you reject an offer and you lose at trial, it is possible that you could end up paying the costs and maybe even the fees of the other side.
Now you need to sit down with your attorney and you need to go over all of the risks, the costs, the benefits, and see if settling now makes sense, or see if really the offer is too low and your chances at trial are too good. That it’s really worth presenting this to a jury to see what they’re going to say even if you run the risk of losing. Again, final advice is it’s case by case and you need to talk to your lawyer. That’s the answer to that. We’ll see you in another video.