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When to Settle and When to Litigate
Ifrequently have clients who decide to pursue litigation over a trust or probate estate because “it’s what my parents [or sibling or child] would want” or “it’s the principle of the matter.” However, sometimes it’s not always best to litigate a matter. How does one decide?
What is the likelihood of success? Legal concepts are not black and white – there is always room for interpretation. When one enters a courtroom, one is also subject to the subconscious opinions and prejudices of a judicial officer. I often explain to clients that going into court is like rolling the dice – you can never guarantee an outcome. At some point, every attorney has entered the courtroom confident in their legal position, yet received a completely unexpected outcome. If you want to dictate the outcome, your only option is to settle the matter between the parties.
Even if you have a high likelihood of success, what is the cost, both emotionally and financially? Litigation is both expensive and stressful. Trials and appeals can take years. Are there sufficient funds in the estate to litigation? Can you manage several years of stress? Yes, the attorney does the heavy lifting, but the attorney is not emotionally invested. Depositions and other discovery can be emotionally draining, because answers are not black and white... and are tempered by interpersonal relationships. It’s not uncommon for an attorney to have a strong case, yet have a client who is grieving or unwilling to go through prolonged stress just because “it’s the right thing to do.”
Ultimately, it is the client’s decision whether to pursue litigation or to engage in settlement negotiations. There is no right or wrong answer. Your attorney can legally analyze your case and provide insight into possible outcomes, and your attorney should also be able to help you understand what will be involved in litigation. In the end, it’s a personal decision. You should carefully consider how unpredictable the outcome may be in the case. Is it worth your time financially and emotionally? Do you want to engage in stressful litigation and possibly damage or destroy family relationships? Someone else's right choice may not be the right choice for you.
Yvette L. Ashworth
Yvette Ashworth is a native Texan, graduating from the University of Texas with a degree in Accounting. After graduating magna cum laude from Georgia State University School of Law, Yvette settled down with her husband near the beach in Florida. Four kids later and following thousands of hours devoted to her children, the Boy Scouts of Amercia, Parent-Teacher Associations, booster clubs, and her church, Yvette moved to Arizona to start practicing law full-time at Johnson & Associates.Learn More About The Author