Settlement discussions are where "so many different factors" collide — a client's relationship with money, their grief, their fear of trial, and their lawyer's duty to give candid advice. Host Brendan Lupetin sits down with his law partner Greg Unatin of Lupetin & Unatin, LLC to tackle the ethical tightrope every trial lawyer walks: How do you advise clients when you can't predict verdicts, when clients resist good offers, and when trial is looming? Brendan and Greg explore how data studies inform — but don't replace — candid client conversations, how settlement disagreements can have a psychological toll, and how lawyers can use a practical tool for documenting when a client overrules your advice.

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Episode Preview

1. Brendan and Greg introduce the episode's central challenge: Settlement discussions come up far more often than trials, yet they expose a "new side" of clients that lawyers may not have anticipated.
2. Brendan explains how large-sample jury data studies — from focus groups to verdict-prediction platforms — help him form concrete settlement recommendations.
3. Brendan tells clients plainly when he cannot confidently say a verdict will beat the offer on the table and that the final decision always belongs to the client.
4. Greg suggests one strategy: designating a separate settlement counsel — someone other than the trial lawyer — to handle negotiations.
5. Brendan describes a practical "informed consent" approach: having clients sign a letter acknowledging they've been advised that an offer is favorable and are choosing to reject it.
6. Greg offers a strategy for knowing when to stop advising and start preparing: If you find yourself repeating the same settlement advice, you've done your job.

Ready to refer or collaborate on med mal, medical negligence, and catastrophic injury cases? Visit our attorney referral page at PAMedMal.com/Refer. We handle cases in Pennsylvania and across the United States.

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We have to try to make the best economic financial decisions under the circumstances.

How do you balance what the data says, and I know you put a ton of faith in it and you should with what's really motivating clients, what they want to see out of this in the end.

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of Just Verdicts for Just Cases. Join us for in- depth interviews and discussions of cutting-edge trial strategies that will give you the keys to conquering the courtroom, produced and powered by LawPods.

Welcome back to another episode of Just Verdicts, and today joined by my trustee partner, Greg. Thanks for being here, Greg.

Thanks for having me.

Yeah, man. And so today we're going to talk about a topic that's certainly closely related to jury trial and getting just verdicts. And it's an issue that I think all of us, you and I certainly are dealing with much more frequently than we are with actually trying cases. And so what we're going to talk about today is the idea of navigating both the ethical pitfalls and the relationship landmines of settlement discussions with our clients. And I think this kind of came to mind yesterday morning, Greg. I'm sitting in my office and I hear you walking in and you're right in the middle of one of those discussions of sort of beginning to explain the lay of the land to clients who have a trial upcoming. And whenever you're in it or I'm hearing you talk about it, it always kind of brings this rush of memories, both good and bad, of those discussions with our clients.

I mean, generally speaking, I mean, do you enjoy having settlement discussions with clients? Are you indifferent or does it kind of depend on the situation?

Well, there's good and bad aspects to it. The good part is that you're just having that discussion. A little less pressure than the discussion about, all right, this is what we're doing to get ready for trial because you know that's inevitable. So yeah, I like it in that respect. It's when you see a new side of your client, I think that makes it more stressful. I think when we get into that phase of settlement discussions, they start asking questions and focusing on the case in a way that just raises new issues that you may not have anticipated with your clients. Especially in medical malpractice, a lot of our clients tend to be chill and laid back. Do you know what I mean? And they don't really get involved with the litigation or the depositions and they answer the discovery and they do what they're told, right?

But then they kind of put on a new mask when it comes to settlement discussions. And that could be stressful trying to understand that person, that client, who's a little different from the client you knew, in my opinion. And what do you think?

I think that's a great point. And I think it has to do with so many different factors. Individual people's relationship with money is obviously a very private thing to most people. Most people are not having discussions with family, friends, or certainly their lawyers about money in general and what their relationship is to it and what it means to them. And then you layer in what's difficult to parse out. Most of our clients, they've got something horrible happened or they lost a loved one and they can't help but sort of equate the money to the loss. I mean, sometimes the money is equatable because it's a future life care plan or something like that. But I don't know how you feel about this, but I oftentimes find myself trying to help our clients understand that the money is not necessarily exactly representative of what they lost because that can't be undone.

And so we have to try to make the best economic financial decisions under the circumstances. What do we truly think our chances are at trial and what we may get at trial? And that's another thing. I'm always kind of looking at the end point. What percentage of the time do I think will win the case? And when we win, what are the most likely ranges? And then that's going to guide, I think, how we discuss the overall settlement concept, like what kind of demand should we be making and that sort of thing. But back to your point, I think I generally ... I mean, sometimes we have great clients and we often have great clients, but with respect to this concept of having this kind of delicate discussion with people, some people are just like, "I trust you. Whatever you think is good, we're going to go with that.

" And that's really helpful. I mean, it can be tough sometimes because oftentimes we don't know precisely what the best route is, but I think those people recognize we're in a joint venture and we're trying to get the best outcome overall and we're in it together rather than law firms or lawyers who are going to get paid either way. But then there's those other scenarios where unfortunately once in a while it kind of brings out a worse side in the client. And I think that's a lot of what we want to talk about today is sort of navigating that situation when your client isn't just like, "I'm going to trust you to do what's best under the circumstances."

Well, I think a lot of difficult questions come up and it's very case specific, right? I mean, you might be representing the adult children of an older person who passed away and they didn't depend financially on the person who passed away due to the negligence, or you may be representing young father or mother with young children who will have a huge void, whether just emotionally, physically, and/or financially in their life or the foreseeable future for the rest of their lives perhaps. So I think that's very case specific and how they respond to things like the data and the prospect of trial is very different, right? So how do you balance, Brendan? I mean, I know you rely really heavily on data. And for me, it's been a bit of a learning process trying to do the same, relying on data when discussing settlement with my clients.

But what I'm starting to really see is that despite the data, yeah, they trust it when we mention it and they're like, "Oh, well, 50 participants or 100 participants came back with this number." They still have a higher calling in terms of what they want to achieve from a settlement or a verdict, right? There's the folks who don't want this to happen again. Whatever happened to their loved one, they don't want it to happen to somebody else. Or I've heard people say, "We just want the hospital or the doctor, whomever to feel this, for it to have an impact, so that they can't just open their checkbook, write a check and walk away like they're just paying for the plumber to fix the toilet or something like that. " So how do you balance what the data says, and I know you put a ton of faith in it and you should with what's really motivating clients and what they want to see out of this in the end.

Well, I think first we should, for those that don't know exactly what we're talking about with the data. So over the years, I have, again, on the right case, doing data studies, jury studies isn't always economically feasible for smaller cases, but for most of the case we handle, it does work. And so what we do is obviously we do lots of small focus groups and get a smaller cohort response to how the case is received by people and everything. But we've also, over the years, more and more frequently done these larger sample size studies. So that could be is one of them. More recently, I'm experimenting with this verdict hub product, but then you've got Oscar and Pete and they worked with these Delphi groups, which again, I'll always think is still focus groupers. And then you have the Campbells out there, but at the end of the day, you're getting data, you're getting information on both how is the overall fact pattern received, what is your seeming percentage, your win rate, and then what is the average and mean value that many people being presented with the basic facts of the case come back with, which is not perfect, but I personally think it's better than just my gut feeling based on my historical experience of cases on what something may be worth.

And I think sometimes we'll disagree a little bit with it, but I put a decent amount of weight, especially I think you and I now have our own sort of comparative verdict outcomes on cases. And we could go back and look at the studies we did to see were the numbers in line. And while you never know if the win rate percentage was accurate, because we've certainly won cases where we had a lower win percentage, I think, I mean, correct me if I'm wrong, but in a lot of the cases recently, we've seen that the verdicts came in within a range not super far from what was predicted in these data studies. Would you agree with that?

For sure.

Anderson last year was very close. And then of course, I think the one that will forever stick out of my mind was the verdict in Miller in 2020 that lined up almost perfectly

With the Campbell's study on how eerily on point that was. So again, it's not to say that they're perfect, but it's an additional piece of information that can help guide what you're telling your clients. And so to get back to your point now that I've sort of explained what these data studies are and how we use them, and we can probably touch a little bit more on how I think they play out and help on a variety of other reasons in this dynamic of having settlement discussions with your clients. As far as addressing those issues that you mentioned a moment ago of accountability, wanting to prevent this from happening again, not just being a blind check to make people go away, that the settlement or the verdict means something, it's client dependent. Sometimes you'll have clients that clearly they want to avoid trial at all costs.

They may have come into the case with those noble feelings, and it's not to say that they don't still have them there, but their fear of having to air their case and go out in public in front of all these people and talk about these private and painful experiences is just the most dreadful thing they can imagine. And so we have to deal with how that plays out. But I think that we ultimately have to have these candid conversations with our clients of what are they trying to accomplish. It's not always the money. Oftentimes it's a balance between the goals of the sort of moral big picture goals that they're trying to accomplish versus what is seemingly fair from a monetary standpoint, since that's really the only remedy that can come from an actual verdict. Again, there can always be collateral things that we don't necessarily see.

I'll tell you one little side, funny story about the collateral changes that sometimes verdicts bring about was, you remember I got a good verdict on a target slip and fall case, and the issue was that there was a mopped floor that they hadn't really contained. And so it looked like it was in one area, but the floor was actually much more wet in a wider range and our client slipped and ripped her hamstring. And my wife, maybe six months later, sent me a photo, but the title, You DidThis, sort of laughing at how absurd it was. And it was the same target, but they had this gigantic fenced in area where they were mopping up. And so the point being that sometimes those verdicts do lead to change, but it just depends with your clients. And I think all we can do is try to maintain as good a relationship we can try to be as candid and forthright about, this is what's being offered, these are the options, this is how it's going to net out and just explaining to them all the facets.

And I think also understanding, I don't know how you feel about this, but I sort of prepare myself now that when I have these discussions with our clients, it's going to be an ongoing dialogue because you and I do this stuff all the time. So it's sort of second nature to us, but our clients are having to grapple and contemplate what we're explaining to them for the first time ever. And it's their one shot. We will have many other cases that we'll settle or we'll try. And so I try, even though you kind of want immediate answers and everything is immediacy, we want it right now, I kind of prepare myself that it's going to take time typically for our client to kind of fully process what we're explaining to them, how the process works in order for them to make the best decision for them.

And sometimes I find myself in the haste, I guess you'd say, of trying to get back to the defense and just to get like a demand out there of limiting the conversation to a phone conversation with a client. And to your point, I kind of have to put the brakes on and say, "Hey, wait a minute, how's my client going to digest all of this, the numbers that I'm throwing at them and their net in one conversation?" And certainly you don't want to ever force your client to make a decision on the spot without spending time with their family, their loved ones talking about it and just thinking about it, right? Because chances are you would hope that a lot of people are thinking what's the end game while the litigation is in process. But sometimes they don't think about it until there's a request for mediation or request for a demand or trial is on the doorstep.

So yeah, I think every practitioner of the law who does this type of work needs to give their clients time and explain things clearly, not just on the phone, but I mean, it's so easy to put together a distribution sheet, right? And I actually did this at a conciliation the other day with my client because there was a workers' comp lien involved and we had some numbers in mind, but I just pulled up Gemini and I started plugging numbers in so that Gemma and I could do the calculation of the lien reductions for the Medicaid lien or the workers' comp lien. And then I asked it to get different scenarios and I was sitting there with my client and showing her my phone. And even that is a little bit too much of on the fly, right? I should have prepared that a long time ahead of time before that conciliation.

So I mean, what is your approach, Brendan, in terms of documenting for your client, these are your options if you have such an approach?

Yeah. I'm glad you brought that up because you said on the fly and sometimes we have lots of time to think through things. You go to a mediation or the defense proposed, you make a demand, you've had discussions with your client about the demand and why you're making it and where the bottom line is and so forth and you have time and you can document that and you can send them an email with, "Here's what the fee is, here is right now at least what our advanced costs are, here is what the lien is that we have to get repaid and the approximate reduction." And the most important thing to the client is what is their net? It doesn't really matter all that other stuff like is what the net amount that they get, are they good with that or not? But sometimes, oftentimes, the time is so compressed that it really makes it much more difficult to be as methodical and document as well as we would like.

So what often happens is the most significant negotiations happen during trial. When you and I have been in situations where the most pivotal discussion point was literally as the jury is deliberating and you don't know when that jury's going to come back. And now the new demand, the new proposal, the new scenario, and you're sitting in a courtroom and you have to have this discussion with the client and you've got to find a way, is it enough to just explain it to them verbally? I think probably just from a cover everybody's butts perspective, no, you have to document it somehow and then it might be text messages or whatever, and it can get really dicey and really add an extra level of stress there. But I think when you do have time, then I think that doing settlement distribution sheets or breakdowns now and trying to be clear that, look, this is a dynamic situation.

And oftentimes we might have a fee agreement where the fee percentage changed depending if the case resolved via verdict or during trial versus before. Obviously the case costs are going to go way up during trial and you have to help because that's kind of what the client is comparing is these settlement numbers now versus how it's going to change through the course of trial and what may happen through the course of trial. So obviously I think we try to do our best to document, give different scenarios for the client to consider so that they can make an informed decision. And that's kind of what I think you have to do. And I think just in kind of mulling this over because you had brought this idea up as a topic for us to discuss here, which I think is a really good one just because we're dealing with this so often.

And I find myself, one of the things I'm thinking most about in the course of our practice are these types of discussions. But I think you always have to make it apparent verbally, you have to explain to them, and it's an ethical rule that the final say is theirs. And there are some clients that don't want, they'd rather you almost do it. Whatever you say is good, but we have to always, and we do always tell them, "I'm giving you my professional recommendations. I'm giving you this data, here's what I'm thinking, here's what I would recommend, but look, at the end of the day, this is your case and you call the ultimate shot on what you want to do.

" What about when you're having these discussions with clients about settlement versus going to trial? Do you find yourself just kind of putting your hands up sometimes and telling the clients like, "Look, I don't know. This is what the data shows, but it's not foolproof. I don't have a crystal ball." And do you find yourself saying, "Look, I don't know what's going to happen at trial and is that ethically okay? Are we fulfilling our duty as advocates and representatives for these clients to say that? " Because I think it's true. We just don't know maybe that's the right thing to do rather than saying, "I know I'm going to get more money if we go to trial because you don't." Or, "I know you won't get more money if we go to trial, so you should settle," which you can't really say that either, right, because nobody has a crystal ball.

So how do you approach that? I

Do tell them that. And I think with all the cases that you and I have tried at this point, and we have seen cases go every which direction, shocked you that you lost, that you thought you were going to win. I've had every different scenario within a high low situation. You don't take the high low, you do take the high low, you get the verdict above what the high was, you get the verdict below, you get the verdict in the middle, then you have these verdicts that we've gotten that were shockingly high and way more than I think anybody expected to get. And there's tons of trial lawyers that have had that experience. And so yeah, I always am heavy and maybe the client doesn't like this and they would like you to be more assured, but I think ethically and morally, I have to share with them my uncertainty and the best that I can kind of tell them is that give them my historical experience and explain that that's in part why I am relying on data studies to help guide for this particular case.

I try to always tell them that when I'm making a recommendation to settle or not settle, it's the best that I can come up with. And my certainty of recommending one option or another often has to do with how confident am I in my heart believing that we can beat what's being offered, but substantially beat at trial. And I think the more money that comes up and the more it gets into you're like, "Well, I don't know, " then obviously the less certain that we can be. And I think we've all been in those situations where you get a settlement offer that just is amazing. It doesn't happen all that often, but sometimes you're just like, "We could never ever say no to this. " On the other side, there's lots of offers you get that it's so easy to say no to, a no offer or a super low offer or whatever it is.

Those are the easiest, but the toughest, toughest, toughest scenarios, both mentally and psychologically for us. And just from trying the case versus advising the clients or those ones where there's maybe not exactly what you think the case is worth, but it still seems like it could be in the realm and your comfort level of how frequently you're going to beat that at trial is not particularly high. Those are the really difficult situations and discussions to have with clients. And again, all I can do is give them my honest thoughts and even explain that to them. We're at a number right now where I cannot comfortably tell you that we're going to more often than not beat that number. We will sometimes and we won't sometimes. And so I wish I could give you more certainty or advice than that, but that's where I am on this and the decision is yours.

What about in your own mind? There seems to be a bit of balancing in the minds of a trial attorney between the optimism and the excitement of going to trial, what you think is a strong case, and the reality that you could lose a case and you could jeopardize a decent settlement that's on the table. And I say this because I often hear trial lawyers, colleagues that we know say, "Oh, really want to try this case. This is such a great case and I'm so excited to try this case." But at the end of the day, your interest in trying the case might not be in the best interest of your client, right? And you still have to have these conversations from an unbiased standpoint, not trying to influence your client to go to trial because you're just really excited to try this case because you think you might get a great result and it might be really good for your professional development to get that great verdict.

So I mean, for me personally, I'm a little different. I'm not always anxious jumping to get into trial because I'm kind of a conservative mind and when I see cookies on the table, I don't want to lose them, right? I want to eat them or give them to my clients to eat, right?

You like your cookies.

I love them. So I mean, how do you balance that in your mind? Because I know you love trial. I mean, that's something you live for, that's where you flourish, but at the same time, I know you're extremely practical and you follow the advice that you've been talking about today of giving an unbiased settlement discussion to the client.

Yeah. I think that there are probably people that ... Actually, I don't think our trial friends, people that we're really tight with would think this, but people that may kind of know of us, the fact that I think that we try more cases than most than a lot of lawyers in the same boat as what we do, and that's probably an interesting path to go down, like why is that? And I think so some people may think that we're trying to go to trial just to rack up more verdicts or to hit that home run. And that couldn't be further from what I'm interested in as a lawyer. I'm often terrified of going to trial when there's money on the table and losing or getting less. Even if I've told the client that there's a good chance that we could lose or we could get less, that it is sickening to lose a case with substantial money that could have made some difference to them.

So I never ... I mean, you hear those stories of people railroading clients into trial because it's just such a great case. I think there have been some situations maybe where we had data backing up that it was such a clear cut decision to go forward with trial, but mostly so long as the client is making an informed decision, and even if they take what maybe I think is less than fair value, but it works for them and they really don't want to go to trial and they don't want to take that chance, I'm fine with that. And I think there would be probably some trial lawyers out there saying that that's a mistake in of itself and you have a duty if you truly believe the case is worth more to go to trial, but it's an awful feeling. And we've had it a handful of times, not a ton, where there's money on the table.

There's one example in my mind that I can think of that I'll never forget where there was a fair amount of money up and we lost. And it's just an awful, awful feeling because that was that client's one shot. One of the most important ethical rules out there is that we have this responsibility to give candid advice, but what is candid? My candid is different than your candid is different than somebody else because it's all based on what have I done in the past and what can I expect on this case? And there's a lot of subjectivity to that. So I think, yeah, you have to be as open and upfront and candid with your client as you can, but that's not to say that it's the perfect advice and recommendations.

I want to come back to talk a little bit about that time when you passed up a settlement and the circumstances of that, because I think it's a whole nother discussion about high-low offers at the close of your trial before the jury gets back. But before I go there, I want to do the flip side of what we just talked about. We just talked about the trial lawyer's mentality of, "I want to try this case." What if you have a case that you know you could lose a trial, you have a great settlement or at least a very good settlement offer on the table, you think this case is poised to settle, but your client is out for blood, or they think they could get more. And you find yourself now almost in that situation where you have to kind of knock that client back to reality, but without skewing your advice towards your goal of just getting the case settled, because there's a great settlement offer there on there.

So how do you approach those clients who are just so gung ho about trial and willing to pass up a great settlement offer?

Well, and I've certainly had that before. I think, again, timing is important there. It can be really problematic when you are strongly disagreeing with the client's desire to forego what you know is a terrific settlement offer just to go to trial and whether it's to drag the defendant through the mud or because they think that there's that chance that we may hit for way more despite that it's maybe a 10 or 20% chance, and many of the times you're going to get less. And the problem with that is when that's going on before trial and then it's carrying on into trial, I think it can really impact the relationship that you have with the client when going into trial really helps. And I think it's critical to have a good relationship with your client, that they trust you, you trust them, they're working hard, they know what you're up to, they believe in the approach.

And that typically comes from aligning with how you're viewing everything going in. Like, "Hey, client, I'm on your team. I totally believe in this case and you were wronged and this is such BS what happened and I'm so fired up to try this and try to really hold the defense accountable." And that's great when you have that. But when you have these situations where you just could not really disagree more with your client's intent or thought process that maybe it's just so, so different than how you view it, it's really problematic because clearly it could impact their view of you, like you don't believe in my case and it can impact your view of them that why are you doing this? Why are you going down this path that's so clearly a bad one to go down? And yeah, that doesn't come up that often, but when it does, it's a pretty miserable situation to be in.

I don't know what the perfect solution is other than, I think I was talking to you before this started, like for example, Rick Friedman, my hero, they have a lawyer at their firm that does all the settlement discussions so that the trial lawyers are not involved in it at all. They're not having those discussions with the client, they're not having those discussions with the defendants because again, that's a big part. The defense, they know exactly what they're doing. They're dangling out little bits of money, a little bit of this to add uncertainty, to distract you. Now you have to have conversations with your client at all these critical times. On one of the cases we tried last year, I literally got a message about settlement from one of the risk managers as I was standing up to give our opening statement and then discussions are going on throughout trial and it's horribly distracting and horribly stressful when you've got disagreement with the client and you're dealing with them.

It might be worthwhile to bring in one of our friends that we know and trust as a good negotiator cases to serve in that role and say, "We're going to give you a point or two on the recovery if we make one or pay you hourly just to be our settlement counsel." Just because I really do think over the years it can just have such a bad impact on everything when you're in one of those situations where you really disagree with the way the client is approaching settlement versus trial.

Yeah. And when it comes to that point you just made about negotiations during trial, I really wonder whether the defense is doing that just to take us off our game, right? They hold onto their money, they don't make a fair settlement offer until the trial starts or until you're a couple days into trial because they want to use the pressure cooker situation to force you into maybe making a decision that you don't want to make, accepting a settlement offer that might just be a little bit lower than you want to accept. So one solution for you and me going forward, there's always kind of a lead guy, I think. You're usually the lead guy on a trial when we try cases together, let me handle those negotiations with counsel for defendant or the person they have behind the scenes in- house. Or like you said, a trial friend or colleague, it could be somebody else in the firm.

I think it just should be someone who's familiar, somewhat familiar with a client in the case.

Yeah, no, I think that's an important part too, is how can you just bring in some random friend of ours that the client's never met and now they're the person having these discussions. And then I was thinking like, how would you be okay with how this ... What if your friend settles the case for way less than what you thought it was worth just because they're very persuasive and we're able to have that happen? So I think you have to be somewhat in the loop about that. As nice it would be to just completely delegate the settlement discussion to somebody else, I think there's problems with that as well. Let me ask you something, because this is sort of reminiscent of a friend of ours will do this sometimes, that when a client is saying no to an offer that the lawyer thinks is crazy to say no to, that a friend of ours will have them sign a letter very similar to like an informed consent document that I understand the risks, I have been advised by my lawyer that this is a good offer, and then they literally have to sign off on it.

I mean, is that too extreme or do you think that there could be some value there?

Well, you'll remember we actually did that once or came close to having our clients sign a letter like that. Remember the client who, there was some subrosa videotape of the client doing some things. He testified- How could I ever forget? Testified he couldn't do some work around the house, but there's lengthy mini series style videos showing otherwise. So yeah, I think that's really smart to do that. And I think when you ask a client to do that, they know you're serious. They know you're ... Because I think clients are suspicious sometimes that the lawyers just want the money and we don't want to go to trial. You know what I mean?

Yeah.

Well, for you at least, I mean, that couldn't be farthest from the truth, but you're happy to go to trial. So sometimes just cutting to the chase and just like, "Look, this is my advice. If you don't want to take it, I need you to sign this to show that I gave you this advice and that it was your conscious, informed decision not to take it. " And then you could get on doing what you want to do and prepare for trial and do the best job possible.

It is hard though too, because you do, you want your clients to believe that you believe in their case and you are ready to go take this to the mat and go to verdict, but there's just that natural friction when you're also telling them that they're crazy not to take this settlement and it just kind of, there's clearly an implication there that maybe you are afraid and you just want the money, even thog is further from the truth. And I don't think that you're ever, for the vast majority of clients, no matter how close we get with them, and we do get quite close with a lot of our clients, that there's still that relationship and that thought of, "Yeah, but at the end of the day, this is a business for these guys and maybe they just want their fee and their costs back and move on to the next one." It's a very mixed topic because there's kind of so many different factors that influence these discussions, but it's interesting.

We could delete this from the video later if we need to, but do you ever find yourself trying to prove that what you're telling the client about the wisdom of settlement, and this is for clients who don't want to listen to your advice, do you ever find yourself saying, "Look, I'll even lower my fee a little bit to put more in your pocket."

Yeah, that's a whole other issue, and that's a good one to raise because that's another really unsettling and part of this practice that I really don't like at all is if negotiating with the annoying defendants and insurance companies wasn't enough of a headache, the worst feeling is when you really feel like you're in a negotiation with your client and it's like you can't get a straight answer from them as far as what they would actually take and you think that they're kind of holding information back and then do you propose because of how strong you believe that the case should settle versus not to knock a couple points off of your fee to kind of get them to the number they need, but then wrestling in your head that a deal's a deal and a contract's a contract and that we shouldn't do that or maybe we should do that.

And then at least for me, then I can get into all my psychological insecurities and guilt of, are we charging too much to begin with? Is the value I'm bringing to this case equivalent to the fee and all that kind of stuff and believing in the value of what you have brought to the case and brought about in whatever the settlement offer is. But I think that kind of comes full circle to why maybe we try more cases than a lot of lawyers do is because admittedly, I don't enjoy settlement discussions other than very straightforward ones. When it's a client that trusts you and they really are going to rely heavily on what we're recommending, and then I can make what I really believe in my heart is the right decision of taking the settlement money, pushing a little bit harder to try to get them more versus going to trial.

In all the other ones, when you have these uncertainty or there's the client negotiations or really frustrating negotiations with defense, going back to what you said before, I meet all of my ethical obligations, but I'm also just kind of like, "You know what? We're just going to go try this case." And for me, oftentimes it's not so much that I want to do that, but it's just an easier, and to me, psychologically a better alternative. I'm just like, then we're just going to try this case because these discussions are, they're not helping, but maybe that's because I lack patience and I experience too much discomfort with some of those dynamics that develop in settlement, which is my default. It's like, then let's just try the case and let other people decide.

Yeah.

I think if you find yourself or hear yourself repeating the same advice to the client about settlement versus trial, you've probably already done enough. You've done your job of advising and informing the client of their options. And any more than that, not only is a distraction to your trial preparation, but it starts to create staying on your relationship with your client and you start to get into a situation where you're focusing on the client who's not willing to work with you and listen to you about settlement instead of focusing on the client whose story you need to tell at the time of trial, right? Yeah. And you need to focus on the client whose story you need to tell at the time of trial. So sometimes just getting to the point, documenting it, your conversations, getting clients to sign off if the situation may call for that, that's what you should do if you want to be really doing the best job for your client so you can move on and prepare for trial.

Yeah, I agree. And again, come back to one of the topics we mentioned initially is how these data studies can be useful because it's not just getting the number and now we know what the value of the case is, but I think it provides a lot more certainty to me. I don't know how you feel about it, but in the recommendations that I'm making to the client, client wants $10 million and no less, but we think it's a $2 million case and you do the jury study and maybe it's mean an average of two and a half million. Well, number one, that gives us a lot more comfort in, okay, well, we should be adjusting our settlement range from my perspective, maybe up a little bit, maybe I was a little bit conservative on how this case may resonate and what it may result in a trial.

And so that gives me ... I'm fine. I'm fine modifying my demands or my thoughts on what the value of the case is with that new information, but oftentimes the numbers will come in sort of in the vicinity of what we were recommending, and that just gives me more comfort and confidence in what I'm recommending to the client. And what I find those studies do with clients is it's an additional level of information for them. We have basically an ethical legal duty to inform our clients, make sure they're as fully informed as they can about settlement versus trial and so forth. And that is this additional piece of information you're providing them. And I think historically what I've found is when clients are entrenched in a number that is not in line with what reality is, you can provide them that jury study and I think typically the knee-jerk reaction is they'll sort of wave it off like, "This is just something you've come up with.

" But then when they sit with it and it's there, not everybody, but a lot of people, it'll kind of click a little bit. And I find that people become a little bit more sort of open to the fact that maybe their number in their mind was not realistic because at the end of the day, the clients are very much like, "What is this worth? I don't know what this is worth." And maybe somebody puts a number in their head or they're doing random searches online and getting Kakamemi numbers from other cases with totally different facts on what the value is, but that's where I think that that can be really helpful. And I'll also say that for anybody listening on how to potentially ... Again, I'm always like, "Oh, focus groups have so many different uses." But what I've found is that if you just tell your client, just like if you tell the risk manager or the people on the other side of the case, "Well, I focus group this case and here's what the people said," there's going to be a lot of skepticism there.

Whereas if you videotape focus group and you show, "Hey, you want to see the facts that I presented to these people and here's a random person and what they're thinking and saying and thinking about your case and the value of your case, I think that can be very effective in fully informing your client and helping them make the best decision possible." That's just my thoughts with that and how that can be really effective sort of additional tool as trial lawyers trying to get the best outcomes for these clients.

So you'll give the jury data or studies to the client?

I mean, in a lot of our cases, yeah. And now does it always work? No. And we've certainly had clients when we've showed them like, "You're going to lose this case a vast majority of the time. And even when you win, here's the number and it's just cognitive dissonance." If that doesn't confirm what their preexisting beliefs are, then they just kind of ignore it. But I think definitely a lot of clients I've noticed that when they sit with it, I can get the sense that they start to come around to what we're recommending. And it's not like, don't just take my word for it. These are real people that are providing this information. And if you're not factoring this into your decision, then there's probably nothing I could say or do that would change your mind.

So in the beginning of the podcast, you mentioned you heard me talking with some clients yesterday and just a little bit of background on that. So I invited the clients to motions in limine, arguments on motions in limine, because I wanted to meet up with them to get ready for trial, which was supposed to be in the middle of April, but it was continued. So I just figured, well, if they're coming all the way to meet with me after the motions, just bring them into the courthouse, have them hear the motions in limine, so they get a little bit better sense of where we're at with things. And that raised so many questions for the clients. And at that point, they're like, "Oh, could we get the expert reports? Can we get the medical records?" And normally you don't want to provide all that information to your clients because it's information overload and they draw inferences and conclusions from all that information that may be completely irrelevant to what the case is all about.

That sort of happened in this case, although my clients are very shrewd and very smart and reasonable and they've picked out some really good issues and they understand the issues. So I guess my question is like, are we making sure our clients understand the case enough before asking them to make these important decisions about how much they should accept for settlement or going to trial?

I mean, how can you ever, and I'll say that with, I'll give you an example. Pretty much every single case we take to verdict, the clarity of what the case is about and how we're going to present it and what the real driving issues are, I'd love to say that I have the case completely formed out and it's all structured, done, perfect, weeks before trial, such that I could present to the client like, "Hey, here's the exact thing. Here's how we're going to present this and everything. Here's full disclosure of how it's going to go. " But that's impossible. And trial is so dynamic. A lot of times you're saying, "Should we call this witness? Should we not call this witness? Should we call this expert? Should we introduce this record? Should we not? " And as I'm writing my opening, I'm coming up with different ways to phrase the topics.

And the trial that we tried in September, there was kind of two theories of liability. There was a time where I thought the one was the winner and I even talked with the client about that. "I think this is our winning theory, but then I did more and more focus groups and I discovered, no, that's not the winning theory. It's actually this one over here. "And proofs in the pudding with the verdict that the right theory was selected, but-

Just think how much more you could have got with the other theory though.

Just

Joking.

No, but I mean, that's all the insanity of trial is always the what ifs and what if you did this and what if you did that and how would that have changed things and the different ingredients you add in or take out

As far as what the end product is. But I mean, to your point about are we fully informing the clients of it, I think that you can give them big picture aspects of things like, here's what our expert says, here's what theirs is, but I think really what you should be doing and can do is giving them your assessment and the biggest factors influencing why you are making the recommendation to them that you are. You cannot go through every scintilla of facts and evidence within the case because it gets back to what you said. It's information overload. That's not helpful. I think our job is to bring to bear with them our professional belief and opinion on what the best path forward is, whether it's settlement, whether it's kind of a coin flip or whether this is really a case that we should go try.

And here is my rationale and reasons for providing them that net breakdown of like, " Here is what you're going to net at this number. If we can get to this, here's what you're going to net at this number. "If we go to trial, here's a rougher idea of what number we need to get in order for you to even net this number and explaining those factors to them and ultimately to go start back at the beginning of what we discussed at the pod, they have to make the decision at the end of the day. And obviously we have a lot of influence on that, but I think that you cannot overload them with everything. If they want to ... I mean, again, you offer to them, you want to look at everything in the file, we'll send you a link and you can read every deposition, every expert report and all the answers to discovery and the pleadings and everything else, but how helpful is that going to be?

So I have a somewhat tangential question for you. We've talked about this before. Do you think there's a way as a law firm that you can accept cases, take on cases and clients which are likely to go to trial so that you either individually could get more trial experience, hone your skills, or help new associates get more trial experience? Or do you think in the atmosphere, the legal environment we live in where so many cases settle, so many cases mediate and given the overarching theme of what we've been talking about, keeping our client's best interest in mind always, do you think that's just not possible?

Well, if I understand what you're asking is, is it feasible or ethically appropriate to take on cases just because you think whether the facts, whether limited damages or questionable liability, they're likely to go to trial and are going to give you and/or young associates an opportunity to get the trial. Is that kind of what

I'm- Yeah. And is it not only is it possible, but is it wise?

Well, I don't know how wise it is. I mean, I think the starting point has to be, what is the best advice that we can give this prospective client? And so I think if you approach that, if that is in your sort of calculus on whether you're going to take a case is that there's a chance it may go to trial, then you have to be upfront with this client at the beginning and say, look, your case has a lot of problems for X, Y, and Z reasons, but it does have some righteous components. And certainly you cannot ever take a frivolous case or just a pointless case just so somebody might get to try it. That is counterproductive and problematic on a lot of levels. But if it's a case that has some major warts to it, which would mean that there's a good chance it may try, I think that so long as you are upfront with that prospective client and you're telling them that if you sign up this case, you are accepting the very real possibility that we're going to try this case.

One of the reasons we're interested in taking your case in spite of all these problems that we can identify with it is that we think it may try and we would be good with that. And so if you are on board with that scenario, then we can represent you. But I don't think it's wise to take a case and you're not fully upfront with these people about the fact that you're taking it in large part because you think it would try and it might give your associate an opportunity to go try it.

Yeah.

That's sort of my off the cuff thought on that.

And I think from a practice standpoint, we've decided that it's not necessarily a good business move. Do you know what I mean? One thing that you did mention a long time ago, which popped into my mind again this morning, which I still think was a fantastic idea and it wasn't yours, but you definitely toyed around with adopting it. And that is just reaching out to attorneys who don't try cases, don't want to try cases and saying, look, if you have a PI case or med mal case and you just can't get it settled and you have to bring this to trial and you need someone to try for you, we'll do it. I think that could be an excellent way to get back into the courtroom, to hone your skills or to get a younger attorney, some experience as well. But again, it's time, it's money, and we only have so much time between our commitments to our partners, our associates, our employees, and our families.

Well, and I think that kind of raises an overall big picture that we can end on here is I think that that is a great idea. And I think that making it known to attorneys who maybe haven't tried many cases or are just at a point where they don't really want to try cases, that it is a potentially great idea to offer those services. And the reason is manyfold, but I think as far as the topics of the ethical tightrope that you walk in taking a case and settling or trying the case is the threshold question is, is this in the client's best interests? What I am telling them, what I am recommending to them. In my heart, do I believe that this is the best for them? And so with that, if there is an attorney or there's a firm and they have cases and they're getting low ball settlements and just because of their fear of trying the case or their need to just get the money now to cover overhead or advertising or whatever it is, and they're arguably maybe, and maybe they know it and maybe they just don't know they have any options to have other lawyers come in and help them try the case.

But if they're selling their clients short and they're not being upfront with them about, this is a case that really should go try, then I think you're doing a great service for people. But I think the big takeaway with all of this is that so long as you are being as upfront and you're informing the client as much as you can about the driving factors of the advice and the recommendations that you're making, then I think you are meeting your professional duty to your clients, whether they like it or like you or not. And so that would be my response to telling people that we'll try their cases for them. If it's going to help them carry out their professional duties to their clients to try cases that need to be tried, then I'm all for it.

Well, good. Good job of bringing that back to make it relevant to this discussion. It was great chatting with you.

Yeah, that was a good pod. Thanks for jumping on with me about it. Lots of different side topics that we could probably discuss in the future. For anybody out there who's listened this far into the pod, if there's any interesting topics along these lines or even related issues within this that you'd want us to cover or you'd want to talk with us about, hit me up and we're all ears to kind of talk through the way that we think about tough issues within this practice, because yeah, it's fun to talk about and think about trial, but that really is a smaller aspect of the work we do and these kind of issues, settlement issues, approach to clients, I mean, that's ubiquitous, things that we're dealing with all the time. So want to help, want to learn, so hit us up if you have some topics to discuss.

So Greg, thanks for doing the pod with me, man.

Hey, thank you for having me, Brendan.

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