When You and Your Attorney Disagree About Settlement or Trial

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Ideally, the decision of whether or not to accept a settlement offer or to go to trial is carefully considered and discussed between you and your attorney. While the decision is ultimately up to you, the client, your attorney’s opinions and advice weigh heavily in the choices you end up making with respect to your claim. No attorney can legally force a client to accept a settlement offer or go to trial. Your lawyer must act as your advocate and respect your wishes, and is bound by the attorney’s professional code of ethics to report all offers of settlement to you. If you are hesitant to accept such a settlement offer, be sure to talk it over thoroughly with your attorney first.

Why Your Attorney Might Want to Settle

Your attorney is trained to evaluate the specific type of case you have, and has a legal duty to act in your best interests. If she wants to settle, you need to understand why. Trials can be time consuming and expensive and there is no guarantee that you will win in the end. Further, even if you do win, in some cases (like if the insurer has already offered the maximum payout under the policy limits), it may be hard for you to collect a judgment since the insurer isn’t going to pay anything above what they must under their policy agreement. Your attorney may know details about the evidence, the insurance agreement or the law in your state that could be driving the settlement offer and/or making trial inadvisable. On the other hand, it is not acceptable for a lawyer to push for settlement simply because her caseload is too big or he is currently working on another case with a higher payout potential requiring more of his billable time. Your attorney is under an ethical obligation to give you competent representation and you should expect that her advice and recommendations will reflect what is best for you and your claim.

When Your Attorney Recommends Going to Trial

On the other hand, if your attorney recommends a trial, you need to listen to exactly why the attorney thinks a trial is the best strategy. Focus on the facts and reasons. Your emotions are bound to be strong, especially if you feel like you need the money from a settlement right away. However, your emotions can mislead you or convince you to agree to something that, in the long run, really is not in your best interests. Once you settle, you can’t change your mind and sue later, so you should weigh carefully the proposed benefits of going to trial versus settling. If you are on the fence about going to trial, discuss your concerns with your lawyer, including the financial risks that you feel you are unwilling to take. Remember, the decision is ultimately yours and your attorney cannot make you go to trial if you decide the risks are too great.

Getting a Second Opinion

If you still disagree with what your attorney has suggested after listening to him or her with an open mind, there is nothing wrong with getting a second opinion. However, you should generally tell the first attorney you are doing that. If you decide to hire a second attorney, you may dismiss the first one. However, you need to remember that without the contingency “payoff,” you may have to pay all costs and fees that you have incurred by working with your attorney up to that point. You’ll need to check your fee agreement to find out exactly what your obligations are.

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