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What is the ratio of the number of cases that settle out of court versus the number that go to trial?


Albeit there are no authoritative studies that I can refer you to on this matter, I have been an Idaho personal injury and malpractice attorney for over 30 years now. The general consensus among Idaho judges, mediators/arbitrators and experienced trial attorneys is that the overwhelming number of lawsuits filed are settled out of court rather than proceed to verdict by way of a jury trial.

Once suit is filed, the parties engage in what is referred to as the discovery phase of the case. Once a lawsuits is commenced, attorneys for each side typically exchange discovery requests in the form of interrogatories (written questions), requests for production of documents and other tangible things and requests for admissions. Pursuant to the Idaho Rules of Civil Procedure, unless the parties stipulate otherwise or the court grants the shortening or enlargement of time to respond to same, the parties have 30 days from the date of service to propound their written responses in response to the other side's discovery requests.. The parties are also able to take depositions of each other and the lay witnesses and expert witnesses, too.

Once the parties have identified the issues in the case and familiarized themselves with the strengths and weaknesses of the other party’s position in contrast to their own, it is more common than not that settlement offers may be exchanged.

In order to facilitate negotiations, parties often will select by and through their counsel, a mediator to preside over a settlement conference referred to as a mediation. During mediation the parties have the opportunity to engage in settlement discussions until the parties either reach a settlement or an impasse. The general consensus amoungst seasoned counsel is that approximately 95% of cases that go into mediation reach an acceptable resolution of the case and only 5 % or so go to trial. Of course in the mix are those cases that the Court resolves by way of summary judgment too but there are no known statistics that one can turn to that addresses exactly how my cases are mediated versus tried to verdict versus those cases dismissed by way of summary judgment.

There are a number of reasons why the parties in any given litigation may choose to compromise and settle a case without going to trial.

First, there is a level of uncertainty in any lawsuit. If you try a case 10 times to 10 different juries, you are most likely to obtain 10 different results or verdicts simply because each jury pool is different since each jury is unique to itself based upon the people who are selected to make up the jury panel.

Second, there are considerable costs on both sides in taking the case to trial. Exhibits must be prepared. Expert witnesses are typically retained to render reports and/or testimony by deposition or trial.

As a trial lawyer, I enjoy trying cases in front of juries. However, they can be difficult on my clients as well as on the opposing side.  Therefore, given the risks associated with litigation generally and the costs associated with conducting a jury trial, it is not uncommon for the parties involved in a lawsuit to agree to participate in alternative dispute resolution such as mediation rather than proceed on to trial..

Alan Morton
Advocate for Justice/Trial Lawyer