When you and your client talk about settlement, how do you discuss his/her options? I like to use the show Deal or No Deal as an example on occasion.
(Image via tvguide.com)
First, for those of you who don’t know how the show works: It starts with 26 briefcases. Inside each case is a different dollar amount, ranging from $.01 to $1,000,000. A contestant picks one case to keep.
Then, the contestant has to pick certain cases to open. Once a case is opened, the dollar value in that case is off the board (ie if Joe Contestant picks the case holding $100,000, he can’t win that amount, because it wasn’t in the case he kept). At certain points throughout the show, the contestant will have an opportunity to “sell” his case for a dollar amount determined by a shady figure called the “banker.” The banker doesn’t know what’s in the contestant’s case, but he wants to sell it to you for as little as possible.
The offers are based on what cases are left on the board. If there are a lot of high numbers on the board, then there’s a greater chance that the contestant holds a high dollar amount in his case. The contestant decides to take the deal or keep playing, depending on what cases are left and how good he thinks his chances are he’ll do better.
Just like law.
The amount your client has in his case is what a jury would award. It could be a lot. It could be a little. We have a decent idea what the range would be, but you never really know until you get there.
The banker is the insurance company. They want to give your client the lowest amount they can to make the client go away. Is it more money than what’s in your case (what you would get at trial?) If not, is it worth the peace of mind just to take the deal and go home?
As the attorney, you play the role of the supportive friends and family they always drag out (although hopefully you are a little less crazy). You can tell the client that you have a pretty good idea whether they should take the deal or not. You can see what cases are left on the board, and tell your client the chances he will get higher or lower than the offer. You can explain the potential risks, rewards, etc.
So the question is… Client… Deal? Or no deal?
(Howard Zimmerle is a trial attorney in Rock Island County, Illinois)