[Music] Welcome to the Millennial Lawyer Podcast. Hello and welcome to the Millennial Lawyer Podcast with personal injury attorney Mark Shirian. I am your host Kevin Rosenquist and today’s episode is litigation versus settlement. What every client needs to consider. Mark, good to see you. 

Good seeing you too, Kevin. 

So, what are the key factors that clients should consider when deciding between pursuing litigation and accepting a settlement offer? 

It’s a balancing act. So, strength of evidence, time, money, and stomach for risk. So, a slam dunk case with solid proof might push you to trial for a bigger payout, but weak spots like shaky witnesses favor settling. 

How long? 

It’s really a question of how long you can wait. Litigation drags, so settlements are faster. Costs pile up in court, legal fees, experts. So budget matters as well. Uh and emotionally, can you handle the stress of a trial? It’s about weighing certainty now versus a gamble for more later. 

Are there times where you feel like your clients are really kind of hellbent on having their day in court where you’re like, I really think we should probably settle this one for whatever reason. 

I have a theory on that. Everyone deserves their day in court. The one thing I found is that that term a day in court can manifest in different ways. Maybe that means a mediation where a mediator is listening to your client with respect to what happened and how it affected them and that can be the proverbial day in court. Do you understand what I’m saying? 

Yeah. Day in court. 

Yeah. To me and you and to others that means, you know, a trial and a jury gets to hear it. But there are other ways that clients can feel like they’re being heard and that they had their day in court. And I see that a lot. But yes, there are times where there’s an offer on the table and you can only make a recommendation. You can’t force the client to settle or to not settle. You know, there are times where the client wants to settle and as the attorney, I feel like we can get them more or this is something that we should go to trial on. But ultimately, the client does have the right to say, I’d like to settle this case or I’d like to go to trial on this case. We can’t force them one way or the other, but all I can do is give my recommendation. 

Yeah, that makes sense. How do you assess the strength of a case of a personal injury case? How does that influence the decision to settle or go to trial? 

I believe I mentioned this maybe in an earlier podcast, but every case whether it’s a personal injury case, it’s an employment discrimination case, even a breach of contract case, it all comes down to liability, damages, and likability. So clear fault like a drunk driver plus severe well documented injuries. That’s a strong case. Yeah. Trial could maximize recovery. But if faults murky or damages are soft, settlement is safer. So I look at the jury pool too. Will they connect with my client? A strong case tempts you to roll the dice at trial. A shaky one screams take the deal. Yeah. That’s how we look at it. 

You mentioned time and cost before  litigation. How do you kind of like gauge your client’s willingness, ability to handle those things when trying to decide on how to or proceed? 

Time and costs are the silent killers of litigation. So trial, as you know, can take years. Discovery, motions, delays while you’re paying bills and missing work. So legal fees, even if you win, it’s not instant cash. Settlements cut that short. You get money faster minus the expense marathon. So for clients needing relief now time and costs often tip the scales to settle it. 

I know you’ve commented before about the question of hey how much is my case worth? It’s like it depends like you can’t necessarily tell anyone what their case is worth right away. If people come in with maybe inflated ideas of what their case is worth do you have to temper their expectations or how do you handle that? 

I believe as an attorney, it’s important to manage expectations from the beginning because, and I think this goes for the lawyer and for the client. As the client, you don’t want to have your hopes up and then become disappointed later on. As the attorney, you don’t want to pump up your client and then disappoint them later on. I think it’s important for both the attorney and for the client to keep an open mind. And again, that question from the very beginning, how much is my case worth? If I actually put a number on a case from the very beginning, it’s either going to be extremely low or it’s going to be a lot higher than what the number really is. And I’m not going to, I wouldn’t say, take a risk, but I’m not going to put myself in that position to overestimate a case or underestimate a case because we’ve all been there. I personally have been there. I have overestimated cases from the beginning. I have underestimated cases from the beginning. And that’s the nature of litigation. You don’t know what’s going to happen. So managing expectations from the beginning is critical and it will help not only the attorney but the client. 

In your experience when you do go to trial, what kind of psychological effects do you see on the client that may impact whether another client like something else you see in the future maybe shouldn’t go to court or how does that how have you seen that play out? 

That’s a very interesting question because unfortunately you can have the greatest case like I mentioned before. Liability could be great. The damages are significant. A jury would actually like your client. But you realize that litigation’s a grind and reliving trauma in depositions, facing cross-examination at a trial. It’s empowering if you want justice, but exhausting if you just want closure. Right. And I see that a lot. And I and I can say that so far in my career, I’ve learned the hard way that you can’t, you can’t litigate with every client. And that means that you have to be sensitive to how they are. You can’t just throw them in the hot pit because they decided to hire an attorney and litigate a personal injury case. You have to be very sensitive to what their limitations are. So like I said, reliving trauma depositions or at a trial, you have to be very sensitive to that. So settling feels like a quick private relief, but some clients initially could feel cheated, like they’re settling, you know, like they’re selling out. I’ve seen guilt over giving up push people to trial while fear of uncertainty pulls them to settle. So, it’s deeply personal and psychology can trump logic here. 

Yeah. Do you find that people have misconceptions about the litigation process? 

Absolutely. So yeah, TV, Netflix, the culprit, law order, clients think trials are fast, dramatic wins, reality slower, messier, less predictable. You know, they overestimate their payout, forgetting costs eat into it. Many assume settling means admitting defeat. It doesn’t. And I will say the other side, even if they’re settling with you, will never admit that they were at fault. And I’ve seen clients ask me that. Will they admit that what they did was wrong? Will they write me an apology? They’re not going to do that. So it’s interesting that people need that. Some people need that, like mentally and emotionally. 

It is interesting. The non-monetary stuff is.

Yeah. Uh I once early early in my career I settled a workplace discrimination case and my client we were able to secure the monetary settlement that he was looking for. So he was satisfied with the amount of money they were settling for, but he wanted a provision in the release that the former employer would implement anti-discrimination training because he was very adamant to make sure that no one else would go through what he went through, which is noble. It’s a noble pursuit. Yeah. So, that was a nonmonetary item that was very important to my client. So, it’s interesting how the nonmonetary terms come into play when you’re looking to resolve a case. I don’t see it so much in the personal injury cases, but I see it more in the workplace disputes, whether it’s a sexual harassment or sex assault case. But then I have a theory for that also. We spend a lot of time in the office or at work as opposed to uh you know a premises liability case where it’s the first time that you’re there you’ve you go there monthly or weekly it’s not as emotional. So that’s one thing that I see. 

Yeah, that’s a good point because you also can look at something as an accident like if you slip and fall or somebody crashes into you or something I can be like well that was a mistake it was an accident. And if there’s, you know, workplace discrimination or sexual harassment, that’s not really an accident or a mistake. That’s a bigger issue. There are more emotions tied to those claims as opposed to personal injury. Do you kind of have to do a benefit drawback analysis of settling a case earlier versus waiting until trial? Is that how you kind of go through it with your clients? 

There are a lot of factors here. So early settlement means quick cash, less stress and certainty, no gambling on a jury. You might leave money on the table if injuries worsen later. You know, look, sometimes you get an offer that’s exactly what you would likely get at a jury. You know, especially if you’re dealing, you know, in New York, we have policy limits on our motor vehicle claims. So, if it’s a $100,000 policy and the insurance company is willing to tender their policy before you file suit, obviously you sign the release and you resolve the claim. You’re not going to do better litigating the case. Sometimes you’re forced to if you’re dealing with a low ball offer, but um you know, like I said, you might leave money on the table if your injuries worsen later. And waiting for a trial can max out your reward if the case is strong, but you risk losing everything. Time, money, sanity if it flops. So early is safer. Uh later is a high stakes bet. 

Without giving away your trade secrets, what are some of the strategies you employ when handling settlement negotiations on behalf of your clients? 

I need to know the full story. So, like I said, the liability, what exactly happened? Do we have photos? Do we have videos? Do we have witness statements? Can we prove liability here or are they going to have a very tough time trying to dismiss the case on summary judgement? So, I need to be uh I have to have a good handle on what the situation is with respect to liability. Then, when we’re talking about damages, I don’t like negotiating cases if my clients are still in the middle of treating. I need to know that they’ve had all the treatment that they’re supposed to have, that they had surgery or whatever it is already because I don’t want to be in a situation where I’m negotiating and then all of a sudden they’re getting another surgery, which could add value to the to the case, but I haven’t taken that into consideration in my negotiations. 

Sure. So, strong evidence, a compelling story.

I don’t lowball myself. I demand what the case is worth, backed by data, medicals, lost wages, pain. Timing’s key. I push when the other side’s vulnerable. So, a lot of times after a great deposition, that’s a great time to settle a case, you know, and I listen too. Their offer reveals their fears. So, it’s a chess game. 

That’s a good point. The size of their offer is going to show how confident they are, right? So, stay firm. but know when to pivot uh for the client’s best shot. Do you feel like you have to pull information out of your clients? Are they forthcoming with you? Are there things that they don’t want to share that you wish they would share? Does that happen a lot? 

That happens. There are times where my clients are getting treatment that are related to the accident but involve a different body part that we didn’t discuss and they don’t necessarily think that that’s something that they should share with their attorney because they already shared the treatment and the injuries that they sustained initially and they feel like it’s too late or they just forget to inform their attorney. 

So yeah, you know, people don’t realize. 

Yes. attorneys have an ethical obligation to stay in touch with their clients. And that might be a good uh topic for a later episode, the ethical obligations that attorneys have. And I think it’s important to know as the client what ethical obligations your attorney has towards you, but also clients don’t understand that they have an obligation to keep themselves informed of the case. Yeah. You have an obligation to reach out to your attorney and figure out what’s going on. So it works both ways. And if you are continuing to treat or if there are developments, it’s very important to inform your attorney so that can be taken into consideration when you are looking to settle a case because that might tip the scales one way or the other. 

Yeah. You never know. Yeah. All right. Well, thank you for tuning in to the Millennial Lawyer Podcast with New York litigation attorney Mark Shirian. To connect with Mark, visit shirianpc.com and please like and subscribe to our channel and leave us a review. Mark, thanks so much again for your time. Always appreciate the conversation. 

Appreciate being here, Kevin. 

Thank you. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.