Lawyers pressure clients to settle all the time. This is not necessarily a bad thing, nor is it necessarily wrong to do — sometimes it is, but more often than not the lawyer truly believes that the settlement he advocates is fair and reasonable. However, a lawyer’s sudden “hard sell” of a settlement often catches clients by surprise, especially if the lawyer involved had previously stated (or even boasted about) his willingness to take the case to trial. So why do so many lawyers suddenly pressure their clients to settle, and what should a client do when this happens?
How Lawyers Pressure Clients to Settle
As an initial matter, I should make clear what I mean by a lawyer pressuring a client to settle. Merely recommending a settlement, or even using language such as “I strongly urge you to take the deal”, doesn’t count as pressuring in my book. Part of a lawyer’s job is to advise the client as to whether to settle, so giving such advice is a necessary duty of your lawyer.
To me, pressure means one of two things. First, the lawyer goes beyond merely “strongly urging” a client to settle and ventures into the realm of bullying. This may include insulting the client’s intelligence, raising his voice, swearing, pounding the table or otherwise using intimidating behavior to force the client’s hand. This is pretty rare, but it does happen. Bullies appear in every profession, and when one becomes a lawyer it can lead to verbal or even physical intimidation tactics when settlement time arrives.
Second, a lawyer may threaten some negative consequence if the client doesn’t agree to the settlement. Most often, that negative consequence will be the lawyer withdrawing from the case. Sometimes, the lawyer may say that he will withdraw if the client does not pay the costs of the case going forward. There may be other consequences, such as the lawyer demanding a higher fee (assuming that he still has room to increase his fee under your state bar’s ethics rule), but withdrawal or “withdrawal if you don’t pay costs from now on” are the two most common threats.
I will address these two types of pressure and how a client should respond to them later on in this article. For now, just know that these two things are primarily what I mean by “pressuring a client to settle”. I don’t mean strongly urging a client to settle or telling him that he’s making a huge mistake by not settling.
Why Lawyers Pressure Clients to Settle
There are really only two reasons that a lawyer will pressure a client to settle. First, the lawyer truly believes that the settlement is a fair deal and that proceeding with litigation will not obtain a better result. Sure, there is always the possibility of a larger-than-expected jury verdict should a case go to trial, but your lawyer typically will not want to gamble on the hope of an unusually favorable outcome. He’ll base his settlement opinion on the most likely outcome. You’ll most often encounter the second type of pressure I described above (the threat of withdrawal or the threat of withdrawal if the client doesn’t foot the costs from then on) when the lawyer thinks the client is taking an unreasonable gamble by rejecting a settlement.
The second reason a lawyer would pressure a client to settle is because he just wants to be paid (and paid quickly, no doubt), regardless of the fairness of the settlement to the client. While it is theoretically true that a lawyer on a contingency fee is motivated to get as much as possible out of case, the fact that lawyers have dozens of cases open at any given time makes a less-than-optimal resolution of a single case less damaging to the lawyer than to his client. He can make up for the financial hit incurred by a sub-optimal settlement by increasing the volume of his caseload. A client only gets one case. Therefore, while the lawyer’s and client’s interests are aligned when it comes to settlement (the more the client gets, the more the lawyer gets), the lawyer has a motivation to push for a lesser settlement that the client does not. He has other cases to move on to after yours is over, and a rapid turnover of sub-optimal settlements may ultimately make him more money than squeezing the most out of every case.
I can say with a good deal of confidence that it’s more common for lawyers to push a settlement out of genuine belief in its fairness versus being motivated by personal interest. However, I’d be lying if I said that I thought the second scenario was rare. Even in cases where a lawyer generally has good intentions, it’s impossible for him to completely divorce his own interest in settling from what may be best for the case. The guarantee of payment, coupled with a pervasive fear of going to trial, will color most lawyers’ opinions about whether a case should settle, even if only subconsciously. In a perfect world, this wouldn’t happen. However, we live in the real world where lawyers are humans and have their own fear and greed to contend with. I’m not making excuses for such behavior. I’m just saying that it’s something clients should be aware of when receiving settlement advice. Your lawyer isn’t some disinterested third party — he wants to be paid, too.
When a Lawyer’s Pressure to Settle is Unexpected
It’s particularly confusing and irritating to clients when a lawyer who had previously expressed strong positive feelings about a case suddenly starts bashing the case and pushing for settlement. I know enough from personal experience and from the many comments I’ve received over the years that it’s pretty common for lawyers to tell clients how strong their cases are and boast about their willingness to take a case to trial early on in the representation, only to push strongly for settlement and say that the case has serious problems later on. This sudden pressure to settle, seemingly out of left field due to all the early positive comments the lawyer made about the case, is mainly due to two things (yes, I’m aware that this is the third time I’m creating a list of two things in this article).
First, lawyers are generally boastful when it comes to their willingness to take a case to trial. By and large, personal injury lawyers do not want to try cases. Of course, no lawyer is going to tell a new client that he really doesn’t want to go to trial. So, unfortunately, most lawyers lie (maybe to themselves as well) about how willing they are to try your case. This kind of talk usually simmers down when actually going to trial becomes a distinct possibility. While the advice I’m about to give doesn’t help people who are currently witnessing a lawyer get cold feet about going to trial after previously bragging about how willing he was to do so, maybe it will help some people just starting a case: take any claim by a lawyer that he is ready and willing to try your case with a grain of salt. Asking the questions I list in this article of any prospective lawyer may help you weed out the poseurs from those who regularly take cases to trial, but this needs to be done at the outset of a case.
Second, lawyers’ opinions about cases change over the course of litigation, often for the negative. In the beginning of a case, lawyers hear the client’s version of the facts and only see the treating physicians’ opinions about the injuries. A lawyer’s opinion about the merits of a case will be at an all-time high when he only has this one-sided information. Later on, he may (and most often will) receive evidence from the defense that calls certain assertions into question. Even if he still believes in his client’s version of the case, he can recognize that there is another less favorable point of view out there — one which a jury might believe. It’s only natural that a lawyer’s opinion of his client’s case will decline over the course of litigation (most of the time).
If a lawyer keeps his client updated on his declining opinion of the case, it usually isn’t an issue come settlement time when the lawyer points out the negatives and pushes for settlement. Unfortunately, many lawyers avoid unpleasant conversations with their clients about negative issues in the case until they have to have them, leading to what appears to be a sudden 180 degree change of opinion by the lawyer right at the time a settlement offer is on the table. So if your lawyer suddenly appears to pull a Jeckyll/Hyde when pushing you to settle, odds are that his opinions about your case didn’t suddenly change — he just failed to inform you of the events leading to his gradual change of opinion as they occurred, likely to avoid an argument with you about them until he felt it necessary. Again, I’m not excusing this behavior. I’m just saying it happens so that clients might better understand why their lawyer is no longer enthusiastic about the case, and why that change appears so suddenly.
What to Do When Your Lawyer Pressures You to Settle
If your lawyer is using bullying tactics (as explained above) to pressure you to settle, I’d be extremely wary of that settlement offer. A lawyer should never verbally or physically intimidate a client into settling — again, I’m referring only to thuggish behavior. Strongly urging settlement and even threatening to withdraw are not verbal intimidation. If this happens to you (and you don’t want to settle), you should withhold settlement authority. If the behavior is bad enough (certainly if there is physical intimidation), it could warrant an ethics complaint with your state bar. Do not respond in kind with insults and intimidation of your own. Rather, consider firing the lawyer. Such behavior on his part (again, it should be really bad behavior) should allow you avoid paying him a fee. There’s always a risk that you won’t be able to find another attorney, so it’s a decision that needs to be considered carefully, and really needs to be based on the specific conduct in your case. It’s hard to say in generalities when enough is enough.
If your lawyer threatens to withdraw, or requires that you pay costs going forward to keep him from withdrawing, that’s usually a good sign that he legitimately believes the settlement offer to be fair and that continued litigation is unwise. A flat statement that he’ll withdraw is basically him saying that he’d rather walk away with nothing than reject the settlement and continue litigating the case. That’s putting his money where his mouth is, so you should seriously consider that settlement offer. Also consider how hard it may be to find another lawyer to take over your case.
If the lawyer offers to continue litigating only if you pay costs from now on, it’s not as strong a statement as a flat threat to withdraw if you don’t settle. Here, he’s essentially saying that he’s willing to gamble his time with you, but he’s not willing to gamble any more of his own money (on costs) to try to get a better result. In some scenarios, the lawyer knows that the client can’t afford the future costs, making his offer more like a flat threat to withdraw, but in others where you as the client can pay the future costs, he’s asking you to back up your own high opinion of your case with your own money. That’s not unreasonable, and usually makes the client seriously evaluate whether the potential for a greater recovery is outweighed by the future costs of the case, especially should it need to go to trial.
No client likes being pressured to settle. The truth is, most lawyers don’t like having to pressure clients to settle. With good communication by lawyers about negative developments in the case, this situation can often be avoided entirely, at least when the client is reasonable (and there are lots of unreasonable clients out there who should be pressured to settle). Regardless, should a situation arise where your lawyer threatens to withdraw if you don’t accept a settlement, you should strongly consider that settlement. A lawyer willing to walk away from a case entirely is usually a sign that he honestly thinks the case will have a worse result (perhaps disastrously worse) if it doesn’t settle. Because clients hold the ultimate authority to settle a case, sometimes the only thing a lawyer can do to push for a reasonable settlement is apply a fair amount of pressure.