It’s In Your Court: ‘But it’s a matter of principle!’

Judge Steve Halsey

An old saying with which we are all familiar is, “A bird in the hand is worth two in the bush.” But once involved in a lawsuit, a lot of litigants forget the practicality and common sense of that old saw. A litigant might be asked why they are spending thousands of dollars in attorney’s fees and countless hours of financial and emotional capital to wage what appears to be a senseless or wasteful or frivolous crusade, to which they may reply, “I must. It’s a matter of principle!”

Certainly there are battles that have had to be fought in the courts, and continue to be fought, to protect basic individual rights, compensate an injured or damaged party or bring a criminal to justice. You may have heard about the Washington D.C. man (I hate to say it, but he was a judge) who sued a dry cleaners for $67 million dollars over a lost pair of pants. That is a frivolous lawsuit and not what I am talking about.

What I am talking about is the necessity for litigants to rationally analyze the likelihood of success and trial versus the costs of litigation and possibilities for settlement. Many litigants, perhaps even a vast majority, feel they are 100 percent correct and that their opponent is 100 percent wrong, therefore there is a 100 percent probability for success in court. Nothing could be further from the truth. Virtually every lawsuit, including criminal charges, involves some possibility of failure in the courts. Success is never 100 percent certain in court.

A 2008 study published in the Journal of Empirical Legal Studies and reported in the New York Times found:

• Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases.

• Plaintiffs were wrong in 61 percent of cases. 

• In just 15 percent of cases, both sides were right to go to trial—meaning the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant offered. 

The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates.

The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers. 

The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author of the New York Times article. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something and more willing to take a risk when they have something to lose.

An article in The New Yorker by Malcolm Gladwell, best-selling author of “Blink,” “Outliers” and “The Tipping Point,” describes that in many areas of conflict, whether on the battlefield among generals or in the courtroom among litigants, frequently there is overconfidence on the likelihood of success. Why else would lawyers, in final arguments in a jury trial, ask for awards in the hundreds of thousands of dollars or even millions, only to be awarded a modest sum or nothing at all? I have seen it happen and it’s not a pretty sight for the losing party suffering from terminal overconfidence.

What is the point of all this? Settle your case. 

Make a good faith effort through mediation or other forms of alternative dispute resolution, such as a community conference, to settle your dispute. If you are engaged in a family court dispute, take control of your own destiny and work collaboratively with the opposing party to reach a resolution in which both sides are invested and, therefore, more likely to abide by. Make a reasonable effort to avoid leaving the important decisions affecting your family to the stranger in the black robe or a jury of your peers. And certainly do not allow the litigation to get so out of hand that your children are the “casualties” of your dispute. 

The bottom line: proceeding to trial as a matter of principle often results in a costly and unexpected unfavorable outcome. If that is what you want to do, take out your checkbook or credit card as it will be expensive.


— Wright County District Court Judge Steve Halsey is chambered in Buffalo. He also maintains a blog at

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