"I tell clients that if you try the same case 10 times, you'll only win five times. And those five wins will have different numbers," Meyer said. "I talk about rolling the dice, and that we don't know, nobody can know what will happen at trial until you do it. And the question is, what can they afford?"

For example, can a financially strapped family risk losing $500,000 in hopes of getting another $250,000?

Meyer, who has landed more than $95 million in verdicts and another $150 million in settlements, makes it clear that he loves to go to trial. He wants clients to know that when he recommends a settlement, it's not because he's afraid of the courtroom.

"I tell them I'd rather go to trial, but they're the boss," he said. "If they want me to try it, I will. If they want to settle, I'll do that. But I have the obligation to give them the information so they make the choice. I'm empowering them, and letting them know it's all up to them. But I also give them tools to make that decision. I tell them, 'If this were my money, this is what I'd do.'"

Clark Brewster, a trial attorney in Tulsa, Okla., who's won numerous multi-million-dollar verdicts, said it's impossible to get clients to accept your advice unless you've earned their full confidence.

"Sometimes, when a case is so good, the defense will want to settle it quickly," he said. "But the client hasn't formed a bond yet with lawyer that's needed for him to be deferential" to the advice to settle. Typically, that trust is formed after the client has spent enough time with the lawyer. "Most of the time, our clients have been to many, many depositions and we've had many, many office conferences, so that they really do feel they can rely on our advice."

If clients are educated from the outset and kept informed of important developments throughout litigation so that they trust him, Meyer finds they rarely ignore his recommendations. "The client could have a leg fracture and get offered $1 million, and they'll say to me, 'Is that good?' They only know what you tell them, because the client is uneducated in the value of a claim. So it's important to have communication with them that's open and trustworthy, because they haven't got a clue," he said.

"You have to pay respect to the issue that brought them here in first place," Meyer said. Otherwise, clients see settlement as some kind of concession or loss rather than a beneficial resolution to the case. "I let them know that it's a win."

Brewster explains to his clients the financial advantages of settlement. For many, a structured settlement paid out over time is more attractive than a lump-sum verdict. Also, any portion of a verdict designated as punitive is taxable, but damages for personal injury are not. As a result, a smaller settlement amount can actually result in the plaintiff receiving a greater net dollar figure.

With divorce clients, Dorner emphasizes the value of retaining control over the outcome.

"I tell my clients, 'In a privately agreed settlement, we will write down all the words we've agreed to, and then you, the clients, sign it. But if we go to court, that process is reversed. We've given the judge a blank sheet of paper with your signatures on it, and whatever the judge writes down, we'll have to live with. Now, which method would you rather use with your family and your ex-spouse?' Do they want control or do they want to give it to judge?"

Dorner also warns clients that if they come away from the table feeling like they've scored a major victory, the inequity of the situation will probably come back to haunt them. This is especially true in situations involving children, where the parties will have an ongoing relationship.

"My view of a settlement is: When you get up from table grumbling that you gave up more than wanted, but at least it's over, it's probably a fair deal. Nobody should get up from table cheering for joy. Everybody should feel they gave up more than [they] wanted but at least it's over," he said.

Getting An Outside Perspective
Lawyers often find themselves performing a tightrope walk, struggling to maintain the delicate balance between being a zealous advocate and a counselor who provides sobering advice. When they see the case as having serious weak points and begin cautioning a reluctant client that settlement might be the prudent course of action, they run the risk of being seen as a traitor.

This is when it's often helpful to provide the client with an outside perspective.

"If you push too hard on a client, they may worry you're not in their corner," she said. "That's the worst thing. It really undermines the relationship. Sometimes it's better if they hear it from a third party than from you."

Brewster often relies on experienced mediators to help his clients see the light.

"Many times they're former judges, who can offer a perspective on the strengths and weaknesses of the case," he said. "The lawyer has been their champion, saying, 'Yes, we're gonna get 'em, we're gonna win!' When the lawyer starts saying, 'We have problems with the case,' they don't want to hear it. It's best to let that come from a mediator, who can say, 'I've listened to both sides, [and] I can tell you having been in courtroom for 20 years, you may lose this case."

"Sometimes we find the focus groups see the case as worth a lot more than we think, but that's rare," he said. "More often, the clients find the case isn't worth as much as they think. It can also be useful when clients think a particular theory or witness - including themselves - are strong, but we have doubts about it. They often find that theory or witness isn't as strong as they think."

Beskind uses this method only in high-end cases, when trial is nearing and it's advantageous to have focus group input anyway. Typically, he gives a full presentation of the case to a large enough group - say, 32 people - that later is divided into four deliberative groups. Costs range from $5,000 to $10,000.

"But if you end up going to trial, all that you learn from the focus groups is very helpful," he said.

Watching the focus groups can also strengthen a client's resolve to go to trial if they are in doubt, he noted.

"We don't use focus groups to create an outcome, we use it for education. But it can result in an outcome, including the choice to go to trial," he said. "It's not a frequent problem that clients' goals and expectations are different from ours, but when it happens, this is a reasonably scientific way of resolving that."

"He just chatted with him, and talked about what he'd seen over many years on bench, what juries can do, and the surprises you can get from jury," Boyle said. "He talked about the advantages of the certainty of settlement. He did it in very gentle way, not forceful, not trying to be an advocate, but just talking to him as a consumer of the legal system, a person who was in the civil justice system as a customer, if you will, and the judge wanted to make sure he made a good decision."

On another occasion where he felt he wasn't adequately communicating the risk of trial, Boyle asked a renowned plaintiffs' lawyer from another firm to talk with his client. It gave the client confidence in Boyle's recommendation.

Juries Are Always A Crapshoot
Boyle said it's only in a handful of cases that his clients have been unwilling to follow his advice. Still, it happens to every lawyer.

And what makes dealing with these cases so difficult is the ever-present possibility that the client who refuses to settle a weak case, will beat the odds in court.

Meyer chuckled remembering one particularly obstinate client.

"We had one case, the guy was a methadone addict and he'd been in a car accident," he recalled.

The defendant was a wealthy businessman.

"Our client though he'd hit the lottery. I think they offered $100,000 - and his only complaint was headaches! And he was on methadone! But he wanted to try the case. We said to him, 'Are you out of your mind? You have a dent in your car and headaches!' But he demanded a trial."

On the stand, the plaintiff admitted under cross-examination that he'd lied to the insurance company about the value of his car and had turned back the odometer.

"I got him out in the hall and said, 'You've got to be crazy! You just admitted insurance fraud on the stand,'" Meyer said.

But it turned out his client had gambled well. The jury came back with a $300,000 verdict.

Meyer laughed at the memory. "I was stunned, I was stunned," he said.

This article has been reprinted with the permission of Lawyers Weekly USA, the national newspaper for small law firms. To subscribe, visit www.lawyersweeklyusa.com

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