Wednesday, September 3, 2008

A Survey About Going to Trial

The September issue of the Journal of Empirical Legal Studies feautures the results of a landmark study regarding lawyers and going to trial. According to the study, most plaintiffs- 61 percent- who decided not to accept a settlement offer and instead go to trial ended up getting significantly less money than what was offered.

The study contains even more findings, including:
•Poor decisions to go to trial have become more frequent over the years.
•Factors such as experience of the attorney, size of law firm, etc., have less to do with predicting the decision to go to trial than the type of case.
•The poorest decisions by plaintiffs to go to trial are associated with cases in which attorneys are compensated by a contingency fee (where the attorney shares in the winnings at trial).

Clint David, a Dallas attorney, has this to say about this study:

"So what are we to glean from this study?

That lawyers have little financial incentive to settle cases early when it is in the client's best interest, but rather follow their own best financial interests and string the case out to trial?

That lawyers are accurately handicapping to their client the likelihood of winning and losing at trial, but the client doesn't heed this advice or chooses to disregard it?

That it really means nothing because, since the great majority of cases get settled, there is no way of knowing what would have happened in those cases had they proceeded to trial? As in most situations, the conclusions to be drawn may well be determined by your preconceived notions of attorneys and the legal process.

There is one thing I am quite certain of. The legal profession has long suffered from a significant image problem, whether by its own making or otherwise. Moreover, when a profession's compensation model is based upon "the more time you spend, the more you make" or "the bigger the prize at the end, the more you make," then you have set yourself up for these problems, whether perceived or real. "

What do you think?

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