The vast majority of civil lawsuits do not proceed all the way to trial. Many cases are resolved relatively early in the litigation, while others settle at the very last minute. But, how does one know the right time to settle? And what dollar figure is acceptable? Moreover, what is the best posture to take during court-ordered mediation?
Many factors are in play when reviewing a settlement offer — not the least of which is the financial reality of avoiding a costly trial. One of the primary settlement considerations in any litigation is the “likelihood of winning” — what are the chances that a jury will give you what you are asking for? But, the fact of the matter is that a litigator cannot solely focus on how a case will play before a jury, but must also look closely at how the assigned judge is likely to rule during the early phases of the litigation. Given the recent rise and prevalent use of judicial analytics tools like Gavelytics, litigators are finding that data reflecting judicial tendencies and behavior is incredibly useful when evaluating settlement terms.
Actionable judicial analytics can help a litigator evaluate the proper timing and monetary value of a proposed settlement by identifying: 1) How fast a judge usually moves through a case; 2) Whether the judge tends to rule for plaintiffs or defendants; 3) How frequently the judge has granted a demurrer or motion for summary judgement in cases with similar facts as yours; 4) How the judge usually responds to motions to compel production of documents when filed by corporate defendants; and 5) If your judge tends to be persuaded by the types of legal arguments you intend to bring in your matter.
If, based on your judge’s past behavior, you have confidence that you will be able to knock out a couple of causes of action with a demurrer, you might be reluctant to jump at an early settlement. Conversely, if your judge routinely swats down summary judgment motions from parties like your client, you may counsel your client to listen closely to settlement proposals.
The bottom line is that if you are a litigator evaluating the appropriate timing and value of a settlement offer, and you lack access to a dynamic judicial analytics platform, you are doing yourself and your client a disservice. Settlement decisions are hard enough even with all the relevant data at your disposal; without judicial analytics, it’s sometimes nothing more than a shot in the dark.