One thing most lawyers won’t admit is that we are, inherently, risk takers. Before the backlash starts, I don’t mean that lawyers, as a group, engage in risky behaviors. (Although some of you do and you know who you are).
The general perception of lawyers (the positive one) is that lawyers are very careful and cautious, professionally. While this may be true, there is one area in which we all become risk takers –the decision to settle a case or let it go to verdict.
Having been on both sides of the fence, I can honestly say that the proposition is equally risky. For the Plaintiff Lawyer (for the patient) it can literally mean the difference of all or nothing in terms of a recovery. For the little things, like paying the rent, utilities, salaries, experts. For the Defense Lawyer (for the doctor/hospital) it means a potential blow to the ego, loss of trust of the physician or hospital and wondering whether you will ever receive another new file from the risk manager.
Yes, obviously the client component is huge too, but it’s my blog topic so this is all about me, me, me. Few things can be as personally or professionally costly to a lawyer than betting wrong. Trial has gone 2 weeks. In typical fashion, you’ve had your good days and your bad. That one neurologist you spent a huge sum upon really came through. Unshakable on cross-examination. But in the back of your head, you wonder, did the jury even get the point he was making? Did I leave the stove on? Um, sorry. The Plaintiff’s family was very sympathetic and likable. Both of which could be a verdict multiplier, but again there is the doubt. What if they find negligence, but no causation? You win the battle but lose the war.
That offer for settlement looks mighty good once closing arguments are over, but so does the prospect of a verdict for your side. You get your client’s consent for either but at this moment, it all depends upon you. How well have you evaluated the way the case went?
The moment of risk taking is at hand. Roll the dice and risk it all? Or take the money on the table? Deal or no deal if you will. I’ve taken the deal and I’ve also left the money on the table.
In the styling of old blue eyes, “Regrets, I’ve had a few, but then again…” A wise man and mentor, once told me after a particularly brutal loss, “If you aren’t taking losses then you aren’t trying many cases. At least not the cases that count.” Fortunately I’ve bet correctly most of the time which is the reason I am still proud to be taking risks as a trial lawyer.
posted by David Marc Schwadron, Esq.