For decades, I have encouraged parties to evaluate early and often with a view to closing cases to minimize the expenditure of time, money and stress. I was recently surprised by the published contrary view of a litigation management expert.

Teddy Snyder

Litigation is not like wine

Litigation is not like wine; it doesn’t get better with age, goes the old saying. In most cases, the longer the dispute drags on, the more it costs to end it. I have seen many cases where a defendant had an opportunity to end a case early, and years later ended up paying multiples of that early value. Plaintiffs can incur more expenses without increasing the value of the case.

Litigation is stressful for parties, even those who are representing organizations. Claimants who are frustrated by a lack of progress in their case may ruminate and discover additional reasons for compensation. Some of these can increase the final settlement amount.

Injury claimants usually continue to treat. This increases the likelihood of compensable side effects, such as from medication or due to mental illness. Not only does the patient undergo additional medical procedures, but the cost of those procedures rises. A study by the Institute for Legal Reform found that tort costs grew at an annual rate faster than inflation, averaging 7.1% between 2016 and 2022.

Is your opponent as fierce as a bear?

The expert, a speaker at a major litigation management conference I had spoken at many times myself, advised defense counsel and claims professionals, “Don't poke the sleeping bear.” The message was that if the plaintiff wasn’t contacting the defense, the defense shouldn’t do anything to contact them: “If you haven’t heard anything from plaintiff's lawyer, why do that?”

The expression “don’t poke the bear” is an admonition against angering or offending someone, particularly if that person is more powerful than you. Let’s first note that intentionally angering or offending your opponent is never a good litigation strategy. It’s also an ethical violation of rules that call for civility.

But let’s assume that this speaker was referring to innocuous communications. Yes, some claims professionals and counsel on both sides of a conflict don’t pay attention to their pending cases. Then they scramble to prepare for mandatory events. Sometimes I see these folks at mediation, and it is obvious they haven’t prepared at all. Let’s call them the teddy bears. They’re not fierce.

But what if that silence masks the activities of a fierce bear who is gathering evidence and research to take a big bite out of your case? If you aren’t regularly talking about the possibility of settlement, you may not learn the strengths and weaknesses of both of your cases until late in the game. That can impair your ability to properly prepare. Your opponent may have already battened down the stories of witnesses you didn't know about, may have already retained the foremost expert, perhaps regarding a condition or circumstance you had not discovered. In one of my mediations, claimant's counsel disclosed he had arranged for a famous grizzly to handle the trial if the case didn't settle.

Because lawyers are required to transmit any offers of settlement to their clients, even when an attorney has been dilatory, the client may be anxious to end the dispute. Ongoing communications about settlement may entice a litigation-weary party.

Which philosophy?

The answer to “Why do that?” is that regular communication among parties helps you scope out what those other folks are (or are not) doing. Regular communication creates a path to a fair, early settlement.

Obviously, every case has unique circumstances and participants that dictate litigation management choices. However, a deliberate choice to always go radio-silent could damage your client’s result.

Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through snydermediations.com.