Litigation Terms Parties Get Wrong: “We’ll Go to Court to Settle This!”
Lawyers and claim professionals understand what they’re talking about — at least most of the time. But parties frequently use terms incorrectly, and that leads to miscommunication.
Settle ≠ Conclude
A settlement is a compromise of a dispute. Parties choose to negotiate settlements for many reasons, principally to avoid the expense, risk and stress of litigation.
Of course, not every claim settles. Some are abandoned. Once a case is filed in court, even abandoning a case by voluntary dismissal may require negotiation to make sure the claimant need not reimburse other parties’ costs. “We settled for a waiver of costs” is a perfectly accurate way to describe this conclusion.
However, if a case concludes by a motion to dismiss, demurrer, motion for summary judgment, or trial, the case has not settled. It is inaccurate to use this term for this status.
The danger arises when a lawyer discusses settlement with a client, and the client thinks you are talking about a non-compromise conclusion. Even when clients seem to understand the money aspect, they sometimes demand that a public record confirm the righteousness of their position. Make sure they understand the mechanics of completing a settlement early in the process.
“We’ll Take This to Court”
The client has never set foot in the courthouse, but that does not mean the case is not “in court.” This situation understandably confuses clients brought up on courtroom television dramas. The intake interview is the place to explain that once the complaint is filed, the client has indeed gone to court. Linking the payment of the costs advance, the filing fee and the notion of “going to court” may help clarify the concept.
On the other hand, the intake interview may not be the place to disclose that fewer than 10 percent of all filed cases go to trial. Someone who has threatened to “take this to court” means to go to trial, and this person is looking for an attorney to act as gladiator. An angry client seeking vengeance may not be ready to hear the odds against getting an evidentiary hearing.
As counselor, your job is to explain the process, including an explanation of when the client’s case will be “in court.” Use your experience to determine the best time to discuss settlement versus dispositive motion or trial.