A common question for employers when confronted with a lawsuit is this: Should I fight or try to settle?

Unfortunately, that decision inevitably is a business one and often times depends on the facts and circumstances of the case.  

Sure, there are attorneys who profess to be "pitbulls" and who claim that it’s always best to litigate to the end … no matter what the cost is.  The logic is that employees (and their attorneys who defend them) will think twice about bringing suit if they know that the case will never settle and they’ll have to spend years of time getting there without any assurance of victory.

Great strategy, right?

But let’s live in the real world.  Defending an employment lawsuit is typically a financial loss to companies.   Executives have busy enough schedules as is; spending time in depositions adds no value to the company’s bottom line.  

Even when companies "win" and successfully defend a claim, they lose because they have had to pay an attorney tens (if not hundreds) of thousands of dollars to achieve "victory".  And EPLI insurance isn’t a sure thing anymore; get lots of claims and your premiums and deductibles go sky high.  

Then there are practical questions.  Why — when a case could settle for $5000 — is it worth spending $50,000 to achieve the same result?  To "send a message"? Might it be a better business decision sometimes to pay the $5000, guarantee an end to the case and end the payment of attorneys fees, particularly where there isn’t a likelihood of recurrence? Is that a sign of "weakness" or the sign of making a smart business decision.  

Beware of the pitbulls.  It is easy to pick fights with judges, attorneys and your former employees and increase costs of the case exponentially but it is much harder to know and understand which fights to avoid.

For employers engaged in lawsuits, always be well prepared to fight back.   And let me clear, there are times to fight, particularly when the other side is making unreasonable demands.  But never overlook an opportunity to settle when it presents itself.  

It just might be the right business decision at the right time.  

  • Dan, a couple of comments about “pittbull” attorneys from the perspective of a plaintiff’s employment attorney. I just don’t see a lot of evidence that attorneys on either side are deterred from litigation or are more likely to advise their clients to settle on better terms because of the legal counsel on the other side.
    Generally, the attorneys that you and I would describe as pittbulls (again, they definitely exist on both sides of the employment law divide) fall into two categories. Some are just plain tough opponents. They work hard and fight for their clients. And if we’ve done our job with our own client, they may put us on guard but they’re not going to scare us into backing down. But I think the “pittbulls” that you are referring to here are the attorneys who are difficult to work with, often unpleasant or unreasonable, and who will deliberately belittle or try to demean our clients.
    These attorneys will definitely drive up costs on both sides because they will take positions so over the top that opposing counsel will be compelled to be hyper-vigilent and frequently will have to engage in motion practice or otherwise seek judicial intervention to keep the case moving forward. In the process, it is highly likely that they will also irritate agency investigators, judges, arbitrators, mediators, etc. Now I suppose if one has a slam dunk case and can litigate it without ever needing a courtesy from the other side or from the court, making everyone else’s life miserable might be a good one-time strategy.
    Problem is, of course, that a) we seldom have such a slam dunk case as all that, b) real life tends to intrude and even the pittbulls sometimes find themselves needing to get opposing counsel to agree to postpone some event or to get the court to grant more time to complete a brief, and c) employment attorneys don’t just litigate one case (something a client would be wise to think about) but are the proverbial “repeat players.” In a state the size of Connecticut, we see the same counsel in case after case, and a ruthless attorney who gained an advantage in the last case may be at a disadvantage in the next because of his or her tactics. And of course agency investigators, judges, arbitrators, etc. have good memories too.
    In short, pittbull litigation tactics may be viscerally satisfying to a client, but it tends to come with a steep price tag that may not be so readily visible.
    (Ed. note: Agree and certainly “pitbulls” are not exclusive to some plaintiff’s attorneys).