My grandfather, also an attorney, always said before you get too deep into a case to seriously consider settlement. I’ve always followed that advice, but sometimes you get caught up in the facts on your side of the case as does the opposition and settlement is not thoroughly explored such as in the following:
In a recent case we took to trial in Contra Costa County it was a “Contest of Wills”. Our client had an uncle S die and left a Will leaving her as the 100% beneficiary of his estate. It was an older Will. In fact, it was made when she was just a child. The nephew of S presented a more recent Will wherein S left 100% of his estate to nephew. Our client presented evidence that uncle hated nephew and offered evidence that she was her uncle’s favorite and further, that the Will presented by nephew was found under suspicious circumstances. Nephew presented experts stating that his Will was absolutely authentic. Our client presented experts indicating her Will was absolutely authentic as well. At the end of a weeklong trial including testimony of 13 witnesses, including the two experts testifying in direct opposition to each other, the judge who had a forensic background in handwriting matters, announced before the court that we had essentially ruined his weekend and that he was going to spend the weekend shifting through the evidence and at that point he was totally undecided and the case was as he put it 50-50.
The only asset was a piece of real property valued at around $1 million. Both sides had invested major costs and time in the case. After I heard what the judge had said, I asked to go off the record and then I whispered to opposing counsel “did you hear what the judge had said? You have a 50% chance of losing, we should consider settlement”. She replied, “she did not hear that, the judge said what he said, but would talk to her client”. I then asked the court to recess until the next morning (Friday) because of the potential of settlement. The next day the case did settle each side getting 50%. Settlement came in a bit late and because of that, dollars short.