Lawyers are generally hard-wired to prepare a case as robustly as possible, aiming to leave no stone unturned and thereby fortify their client’s position. While this practice often stems from the attorney’s fear of a client’s criticism for not doing more, or a desire to ensure their work is unassailable, it may sometimes not serve the client’s best interests. In certain instances, it would be more prudent, particularly financially, not to overwork a case, especially if it is almost guaranteed to settle.
One illustrative case was an average lawsuit earlier in my career that seemed destined for settlement. The attorneys involved recognized the certainty of settlement and concluded that the proposed offers and demands were reasonable and within insurance limits. The lawyers wanted to pursue some discovery to appraise the claims and convey beneficial information to their counterparts. However, the case proceedings dragged on longer than expected due to one attorney’s excess in preparing for a trial that was unlikely to occur.
This party employed multiple experts for potential trial and even had detailed reports prepared that would be relevant should the case move to the summary judgment stage (Above the Law). The case, as predicted, settled even before trial came into view, rendering all the intense case preparation efforts unnecessary and wasteful, potentially running into tens of thousands of dollars.
While some argue that detailed preparation enhances a party’s settlement position and hence motivates settlement discussions, the contrary can be true. Excessive commitment to a case can occasionally impair a party’s settlement position, making it difficult to settle the matter without judicial intervention. There are cases where a party’s decision to thoroughly work a case up resulted in other parties feeling compelled to hire experts, consequently escalating litigation costs substantially.
Resultantly, during settlement discussions, parties began to incorporate their expert fees into settlement figures, making settlement less probable. The case eventually settled, but all parties would have saved money and struck a more favorable deal had they not excessively worked the case up
In practice, it might seem counterintuitive to recommend less legal work to optimize the chances of resolution. Nevertheless, with cases that are most likely going to settle, working less on the case could be beneficial to the client financially and could facilitate optimal settlement figures.