In recent months, I have settled several litigation matters that have reminded me of the importance of counseling clients about settlement options early in litigation.

One commercial dispute I resolved involved numerous claims and counterclaims, with the parties each demanding damages in excess of half a million dollars.  As with most complex business litigation matters, document review and production, depositions, and pre-trial submissions would have resulted in considerable attorney’s fees and expenses.   Recognizing these potential costs, and the risks involved with proceeding to trial, the parties and counsel worked diligently to work out an agreement satisfactory to everyone involved before unnecessary costs were incurred.  This only could have happened if both sides were well-informed by their counsel and made the effort to consider all options and possible outcomes.

Compare this positive experience to another lawsuit where I became involved only on the eve of trial.  Several attempts at resolution had been made over the years, however, a settlement was never finalized – even though it was clear that most, if not all, of the parties involved wanted to settle the case.  Unfortunately, the lengthy litigation caused the parties to incur expenses and fees that were likely at least triple the settlement value of the case.

It is every attorney’s obligation to have a candid conversation with her clients about the possibility of settlement at the earliest opportunity.  Clients should be advised of the potential costs and expenses involved in litigating a case through trial at the very beginning of the case.  Whenever possible, I will discuss an anticipated budget with potential clients before I forward an engagement letter.  The risk of losing the case, or not recovering as much as a client may want, must also be considered early on.  Indeed, the possibility of resolution should be discussed at each stage of the litigation so the client remains advised of the cost and risk involved with proceeding.   Otherwise, clients are not well-informed and can ultimately spend thousands for unnecessary legal fees.