The fear that the jury will reject your case. The fear of losing completely or of receiving less than what the defendant offered you. Cottone, president of The Counselors of Real Estate in 2004. Once a lawsuit is filed, costs increase for both parties. The statements, the experts, the court fees, all of this adds up.
Customers often have to wait much longer for it to be resolved, sometimes years, rather than quickly reaching a fair settlement. I think a lot of lawyers don't go to trial because they can't run the risk of being considered inadequate by a jury. Many attorneys have an inherent fear that prevents them from going to trial. This fear is a natural consequence of the evolutionary selection that people go through to become lawyers. The trial lawyer said: Show me a lawyer who has never lost a case and I will show someone who has tried only one case or who is a liar.
In the few cases that don't reach an agreement, attorneys and parties often think it was worth the time and effort. You'll have more clients and be able to do more productive work in your office if you earn a reputation as an attorney who effectively employs mediation as a resource. Courts view the trial by ambush with increasing disdain, whether in court or in arbitration, and the lawyer who withholds information runs the risk of it being counterproductive if the examiner of the facts believes that it should have been released sooner. I have three ideas about winning and losing that are important to consider if you are going to be a trial lawyer. Lawyers are trained to defend the point of view of their clients and, in most cases, identify with their cases.
It also helps the parties themselves feel more comfortable with the process and become familiar with the strengths and weaknesses of their case, making it easier for the lawyer to prepare and carry out the trial. From time to time, mediators encounter situations where lawyers have been so entrenched in their positions for so long that they cannot be objective and control their own emotions. Once a mediator discovers that the modus operandi of a particular lawyer or client firm is to accept mediation just to be able to reach an agreement in the court proceedings, most professional mediators will not return to work for them. In addition, a reluctant lawyer can show that the other party is willing to mediate by having an administrator of the ADR program do a discreet investigation. An experienced mediator will allow the parties to vent and, subsequently, help them develop some objectivity in their case, and will help attorneys work with your customers.
While rare, I have personally handled situations where I excluded attorneys and resolved the matter with the parties themselves, subject to the possible approval of their attorney.
