There have been numerous lawsuits already filed against BP as a result of the oil spill. That got me to thinking, "Do individuals and companies think attorneys always rush to file lawsuits?" The answer is, "No." In fact, many times attorneys attempt to settle the client’s case without a lawsuit, but the other side is stubborn or sees the case differently, and therefore, a lawsuit must be filed or the claim dropped.
Many in the media have bought the concept that trial lawyers have increased litigation in this country. That is simply just not true. Ask most attorneys, and they will tell you that it typically doesn’t pay for a client to take their case to trial unless fair compensation is not offered or if the risk is worth the reward. Trying a case can be a huge gamble when you have 12 people you have never met deciding on the outcome.
It is usually better for everyone involved to resolve the matter without litigation. Why? Litigation is expensive. The client can save on stress and aggravation by not going to court. Additionally, settling out of court reduces the risk of what the jury might do. Also, settling early puts money in the client’s pocket which is worth more than possibly getting the same or a little less two years later at trial.
The trial attorney can save on costs by settling without going to court. Many attorneys would agree to reduce their fee if the case could be settled without a lot of litigation costs. Also, the more costs invested in the case, the more the attorney must get for the client down the line because the attorney must recover his costs in addition to his fee.
Companies defending these claims can win too without going to court. How? The claim does not become public record. They can save on their own attorney fees. And, the company can reduce the same risk of letting 12 people decide their case for them.
This explains why over 90% of filed cases settle. If that’s the case, why litigate? Well, some attorneys enjoy the game. Some clients say it’s a matter of principle – Either, "I don’t owe it, and I’m not paying it" or "I don’t care what they offer, I want to see them squirm in court." Another reason is to find out through discovery what, if anything, the other side is hiding and whether they are telling the truth.
So, if over 90% of filed cases settle, why go through the motions? Why not try to reach an accord first? In the BP Oil situation, why not start a dialogue with BP? Why doesn’t BP start a dialogue with the States and the individuals and the affected industries? Why not learn from the Exxon litigation and try to resolve these issues sooner rather than later? Exxon lasted for 20 years. Is that what we want from this?
I would argue that cooler heads could prevail. This is not a situation where people need to profit from a disaster. This is a situation where everyone needs to realize what has occurred. BP understands that it has liability and industries understand they have losses. Meet and talk. If BP and the industries could take a different road than Exxon, it could be an example for future situations. This may be idealistic, but in the end, if everyone acted in GOOD FAITH, it could work. Unfortunately, the almighty dollar seems to control which typically overrides GOOD FAITH.