We’ve written previously about how some lawyers seem to be more willing to go the distance, that is, take a case to trial, than others. In some discussions, this becomes a comparison of trial lawyers, who are ready for trial, and litigators, who work up cases, but seem to avoid starting a trial at all costs. An article in the Daily Business Review (The Case Against Settling Early: The Substantial Upside to Taking Cases to Trial, October 31, 2022) prompted some additional thoughts on the subject. The commentary in this article was aimed at defense firms, particularly those working for insurance companies. The gist of it was that, if a firm, or insurance carrier, becomes known not for fighting cases at trial, but rather, settling, even late in the game, it develops a reputation as a “settler.” In contrast, those who go the distance – to trial, to verdict – are seen as “fighters.” The writers of the article, who are litigators from White Plains, NY, suggest that becoming known as fighters helps defense lawyers and insurance carriers control their overall risk exposure because plaintiff’s lawyers will think twice about pursuing weaker cases with these lawyers/carriers. They argue, and I agree, that having a reputation as a fighter has benefits as plaintiff’s lawyers know the fighter isn’t bluffing when he/she says “I’ll see you in court.” Knowing that plaintiff’s lawyers work on contingencies, they suggest a plaintiff’s lawyer will factor their opposition’s reputation into settlement decisions. I believe the same argument can be made for the plaintiff’s bar. I believe plaintiff’s lawyers who get the best results for their clients as settlements or verdicts are those who are known as fighters, unafraid of the courtroom. It is often obvious to us if the lawyers are fighters or settlers. If a lawyer is a fighter, and the cases still get settled, then fine, but it won’t be from a perceived fear of trial. I have often analogized this to military preparations for battle and I’m dismayed when lawyers are unwilling to “muster their ammo” and get fully prepared for trial (doing mock trials, hiring a jury consultant, spending money on graphics) because they really want the case to settle. I know trials are risky, and expensive, but so is being thought of as unwilling to get to a verdict. So, are you a fighter or a settler?
David has chosen to write about one of my favorite topics, which prompts me to mention one of my favorite clients. I agree with the premise that some attorneys are fighters, who are willing to go to trial and “battle” for their clients’ rights, while others are fearful of going to the courthouse, instead, settling their cases with the knowledge that they did an adequate job on behalf of their client. I guess there’s nothing wrong with doing an adequate job, however, I strive for excellence and I prefer to work with attorneys who share my goal of doing an excellent job on behalf of our mutual clients. This leads me to expressing my admiration for Kim Patrick Hart, an attorney from my hometown of Fort Myers, Florida. Prior to his retirement a few years ago, Kim retained Magnus for 45 cases, representing every case he planned to take to trial. Not only did Mr. Hart retain Magnus for his numerous multi million dollar cases, he retained us for the smaller cases he sometimes litigated. His rationale was exactly what was expressed in the article authored by Mr. Yankwitt and Ms. Hamerman that inspired David’s writing, that is, ensuring the attorneys and insurance carriers on the other side of his cases understood he was willing to do whatever it takes to maximize his clients’ outcomes. Sometimes, our mock jury research revealed Kim’s client would be best served by accepting the offer made by defense counsel. Often, however, our research indicated the case was a certain winner that deserved to be taken to trial, with the goal being to obtain the largest jury award possible. We always learned valuable information that, had Kim Hart been a “settler,” would have remained unknown. Similar to the “fight” or “flight” personality differences among people who are in an emergency situation, attorneys vary in their willingness to fight on behalf of their client. Kudos to the great attorneys like Mr. Kim Hart for fighting! See you in court!