THE RISKS OF TRIAL
As a trial attorney, I am always assessing the risks of trial – or other hearing before a judge. My assessment is fluid, frequently changing based on party conduct, evidence reviewed, strength and weaknesses of my available positions, and the governing law and how judges interpret the law. Let’s focus on the last factor, interpretation of the law.
There are many steps that must be taken before an idea becomes a law. Once the final language is approved by the legislature, it becomes binding on the applicable public. How the language is actually interpreted is up to the judicial branch. The opinion of the judges on the particular law is conveyed via the decisions that are rendered following a hearing. Here is the not-so-obvious truth: judges often differ in their opinions, making predicting the outcome of a legal dispute a bit difficult. Add to this the differing fact patters of every case and the risk of not predicting correctly is compounded.
People going through litigation are necessarily biased and often think that there is only one possible outcome to a trial; a decision in their favor. They expect “justice” to be done. A difficult part of my job is to get clients to understand and acknowledge that laws and how they are applied can be interpreted differently and thus there is an element of risk in taking a dispute to trial. Sometimes judges think differently. Sometimes judges just get it wrong. Even members of the same Appellate and Supreme Court often differ – and even argue – about a decision after hearing the same attorneys present the same case (!)
I share my risk assessment with my clients and it is up to them to decide how to proceed. Usually, if there is a reasonable settlement option, my recommendation is to take it. I am not afraid of trial and actually enjoy the process from a professional standpoint. I do, however, recognize that beyond the risks, there is a significant financial and emotional component to going through a trial.
