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"You Gotta Know When to Hold Them, Know When to Fold Them ..."


- "The Gambler," Kenny Rogers

Last month, days after finalizing a settlement in a hard-fought school negligence matter, I tried to completion a breach of contract case (both sides were required to submit post-trial papers before the court will render its final verdict), and currently, I am in the middle of gearing up for a pre-trial conference later this week in a non-compete case, while trying to negotiate a creative settlement at the very beginning of yet another non-compete case.

And, as disparate as these cases may seem, there is a critical thread - and brutal truth - that these cases share, and which present what are, at least in my view,

The 3 most important questions that litigants should always keep in mind:                 

 1) If, 2) when, and 3) under what terms you should (or should not) settle your case.

To be sure, each case presents its own unique challenges. And yes, in some cases, the question of the merit of your claims (or the lack thereof) can be secondary to other concerns, such as where the defendants are insolvent, which means, as a practical matter, even if you win - you lose. (Of course, that doesn't mean you must accept as gospel, absent supporting documentation, the other side's claims of poverty).

In any event, the crucial take-away is this:

In order to make an appropriate assessment as to the best path forward in a given case, you will need to take an objective, hard look at the strengths and weaknesses of your side's position continually throughout the development and life of your case. 

Critical facts on the ground may change, such as where new evidence comes to light, or a court decision comes down that dramatically alters the analysis and value of your case.

In short, painting a rosier than warranted picture of your case and overall situation does you no favors and, more likely than not, will cost you far more money in the medium to long term (and perhaps, even in the short term as well).

All of the foregoing underscores one thing: just how important it is to have an attorney whose skill, judgment and integrity you trust.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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