Many times I have seen claims adjusters and employers complaining that the attorneys they hire always want to settle their cases. They can’t understand why attorneys do not want to go to Trial every time.

First, I think they misunderstand the role of the attorney. The attorney, also known as counselor, is there to not only represent the client’s interests, but to advise and provide options and recommendations to them. These need to include all of the factors in the case, including the pros and cons. The attorney needs to look at both sides of the case and how the various facts might play out in resolution.

When I first started in workers’ compensation, a wise attorney indicated that every legal case was a donut. Somewhere in the middle of it there’s a hole. The key is to find that hole and make sure that it is dealt with in any sort of litigation. If the attorney is doing his job, he is advising his client of the relative strengths and weaknesses of their case as well as the potential values.

Then it comes down to whether or not the client wants to get certainty, known as settlement, or take the risk, known as Trial. There is a reason why in many settlement documents it is indicated that the parties wish to avoid the risks and hazards of litigation.

In a Trial, many things can happen which are not planned. First off, the attorney may simply have a Workers’ Compensation Judge who is not convinced of the defendant’s case. As you know, the Labor Code is stacked in the applicant’s favor on many legal issues.

Additionally, witnesses can change their minds or forget key testimony. In addition, they may be lost or unavailable. Important documents or items which are needed to prove your case may disappear.

I had a case in which I had prepared a witness in a stress case on at least three occasions. We were in the second day of Trial when the applicant’s attorney whips out a brochure and hands it the witness and says “Did you give this brochure on stress to my client?” My star witness turned a whiter shade of pale, looked at me and mouthed “I forgot about that” before providing an answer.

Fortunately, I was able to rehabilitate the witness, somewhat, and eventually prevailed at Trial but these are the types of things that can occur at a hearing that are not planned for and can totally throw a monkey wrench into your case. Therefore, when your attorney recommends that your case be settled, you may want to ask him why but understand that he or she has probably considered all of the risks and hazards of the case and is giving you a recommendation based upon their experience. If the attorney has done that and you are willing to take the risk then you should not be upset at any of the outcomes which may occur from a final judgement.