Over at Drug and Device Law is The Vanishing Trial, worth reading in full:
Most civil cases don’t go to trial.
And that’s "most" as in something like 95 to 98 percent. …
It matters because counsel should change their strategies when they’re defending cases that they know will settle. …
[I]t does make us wonder about law firms that boast, for example, that, "We prepare every case as though it’s going to trial!" Wouldn’t it be more intelligent to prepare for trial those cases that are likely to go to trial, and to posture for settlement those cases that are going to be settled? …
I agree. Just as war is the continuation of politics by other means, civil litigation is frequently a negotiation by other means. Since most plaintiff’s lawyers don’t bill by the hour, there’s no incentive to do something — like file a motion for protective order or depose someone’s mother — unless there’s a reason for it. I’ll plaintiffs lawyer should always have that reason in mind: are you preparing for trial? If so, are you building your case in chief or preparing for their defenses? Are you trying to gain leverage for settlement? If so, how do you plan to use that leverage, and when do you plan to use it? Will it have the desired effect?
At the end of the day, testimony and cross examination may reveal to the plaintiff and the world the truth of what happened, and a trial verdict may vindicate years of anxiety and frustration, but the civil justice system can only force one party to pay the other party a fixed sum of money.
That’s it. That’s the end of the line. Maybe that check fixes that which was broken, helps that which will always be a problem, makes up for that which has been lost forever, deters others from doing what the defendant did, or sends a message, but it is still only a check.
But that’s the plaintiff’s burden to bear. For the defendant, that check represents an opportunity lost forever — there is no chance for a reconciliation, no way for the world to ‘unlearn’ what it now knows about the defendant, and no way to make that check smaller. The defendant’s refusal to put the cat back in the bag and fix the damage done is what started the civil litigation in the first place, and it is the greatest asset a plaintiff has.
Use it. I’ve seen many cases where everyone "knows" what will happen. It’s not frivolous for the case to be defended against (or to be brought), and there’s always the possibility of the judge, jury, and appellate court surprising us, but we know where it’s probably going to go. The litigation then is properly focused on showing what amount we’re sure the jury will award, and what amount has a high likelihood of being awarded. You’re not going to "surprise" anyone at trial with these amounts — show them, prove them, and create in the defense the fear, uncertainty and doubt that makes settlements happen.