As I have often stated, any settlement you can live with is far better than the result an attorney will achieve for you at trial. Trials are time consuming and expensive, and, no matter how good your case is, there is no guarantee what the result will be when you let an arbitrator, judge or jury decide your fate. In addition, it is not productive for you and your employees to spend weeks away from your current projects to prepare for and attend a trial intended to resolve a dispute from a job that has long been completed. Thus, even a “win” at trial may not be considered a true success once you add in all the ancillary costs.
In light of the foregoing, for a case to go to trial, at least one of the parties must have an unreasonable valuation of the case. For example, I once defended a contractor from a subcontractor’s lost productivity claim that greatly exceeded the subcontractor’s actual costs. The subcontractor’s lost productivity claim was based upon a Measured Mile Analysis that purportedly determined that the subcontractor suffered $27 million in damages. However, the subcontractor’s financial statements indicated that its total loss was only $12 million.