By Dr. Ken Broda-Bahm:
On the path from the initial dispute to the ultimate disposition of a case, there are many forks in the road. In choosing whether to take the path of settlement or to continue on to trial, one of the most trusted advisors is, and should be, the trial lawyer. After all, that is the person with the courtroom chops to provide a solid and realistic appraisal to clients, insurers, and aligned parties. But how good are trial lawyers at making those estimates? Some research seems to point to the conclusion that they’re not good. And experience doesn’t even appear to play a strong role in improving that predictive judgment.
That raises the question of whether attorneys and their clients are ultimately making good decisions on whether to settle or proceed to trial. The subject has been under-studied, in my view, but there are some reasons to believe that the assessment is not as systematic as it could be. Canadian law professor Michaela Keet (2017) recently conducted a study focusing on lawyers and law students to look at the way attorneys think about litigation risks as well as the effects of developing a more comprehensive framework for risk assessment. Taking a look at that research, this post will share some thoughts about the problem as well as the proposed solution.