A Pre-Trial takes place in Superior Court; a Settlement Conference takes place in Small Claims Court – while the names are different the function is the same and I will refer to them both as ” pre-trials ” in this blog entry.
A pre-trial takes place before trial – it is a meeting with a Judge who will not be the trial Judge – this allows the Judge to hear about settlement offers and honest assessments of the case by the lawyers involved.
Some Judges want clients in the room for the pre-trial and others prefer to meet with the lawyers, leaving the clients in the hall until instructions are needed. Many Judges are now punishing clients who do not attend at the Court House for the pre-trial by making them pay the legal fees of the opposing party, the reason behind this is settlement is the goal, if at all possible, of the pre-trial Judge.
In a Superior Court matter, the lawyers file a memorandum with the Court prior to the pre-trial. This memorandum outlines the position of their party and what, if any, settlement discussions have taken place to date.
During the pre-trial the Judge will provide an opinion as to the strength of each case – some Judges will blatantly tell a party they are likely to lose – others will warn that the cost of litigation is high to both sides and settlement is a better option.
Why consider settling if you have a strong case? Well, winning is great, but getting money is better – so if the other party is on the verge of financial collapse, a settlement that is paid immediately is better than a larger Judgment which might not be enforceable if the other party decalres bankruptcy.
Risk is another consideration in settlement: Judges are not predicatable and while you may have a strong case a Judge may disagree and find against you. The certainty of a settlement is often a better solution, particularly when you consider the legal costs of a trial.
The statistics kept by the legal industry suggest 90% of all cases settle before trial – in my experience pre-trial can be an important component in that process and is a positive aspect of the litigation process.
Inga B. Andriessen