2025 has ushered in substantial changes in Florida regarding how civil legal claims are handled. Without going into the minutiae, civil cases require earlier mandatory discovery disclosures, more rigid deadlines, fast-tracked trials, and less discretion in granting continuances. The result is less time to prepare, more stress, and a higher risk for adverse outcomes for those not prepared.
New Problem Requires a New Solution
The status quo has changed. A civil trial docket is now like an assembly line that has sped up considerably with more complex moving parts and the inability to push a stop button. Lawyers will need to adapt and adjust to the new changes to succeed.
One solution is to simply add more resources and staff to handle the extra work and increased deadlines, but that comes at a high cost.
A second and more practical solution is to recognize that not all cases need or should be tried; therefore, an adjustment should be made to settle more cases sooner in the litigation cycle. By proactively planning for settlement, other valuable resources can be directed toward cases requiring a trial.
Settlement is the Most Likely Outcome
The recently released Florida Court statistics for 2023-2024 reveal that only 1.2% of circuit civil cases in Florida were resolved by a trial. This is not an anomaly, as only 1.4% of circuit civil cases were resolved by trial for 2022-2023 and 2021-2022 as well.
This statistical fact confirms that a trial is a statistically unlikely outcome for your cases. Conversely, if your case is not dismissed or resolved by a default or summary judgment, your most likely result is a settlement. The point is that if your case will most likely settle, then do that sooner rather than later.
Know Your Runway and End Goal
Proactive planning for settlement requires knowing your end goal or most likely outcome and the required runway for what is needed to get there. If you do not know one or the other, you are flying blind, with a high chance of crashing at the end.
Would you spend $100 on a chance to win $50? How about spending $100 for a chance to win $100? I don't think so.
The point is neither you nor the client wants to be upside down at the end of the case, where more was spent on what was gained.
The Time for Moneyball Mediation
The 2011 movie "Moneyball" starring Brad Pitt, was about how the management of the Oakland A's baseball team used analytics to build a successful baseball team with limited salary cap space.
The same analytic approach can be used for mediation to set your case up for settlement success. In this regard, four core principles must be considered as a part of your settlement plan:
What is the reasonable expected trial outcome for the case?
What will it cost to get to that outcome?
What can you do to limit the expenses?
What are your options for maximizing outcomes or limiting risk?
Risk Assessment Analysis
A risk assessment analysis involves calculating the risk-adjusted value of a case. As can be seen below, the calculation is not complex. You can keep it as simple as you want or go further by including blended/median percentages or values. A more complete description for calculating a case's risk-adjusted value can be found here.
Ultimately, the risk-adjusted value tells you where you are likely going with your case. It considers the probable liability, probable damages, and the costs to arrive at that result.
For the purpose of the Plaintiff, the risk-adjusted value would be the net to the client after a future trial. In that instance, any settlement that is the same or exceeds this number is a better, faster, and more certain result.
On the Defendant's side, the risk-adjusted value is the outlay by the client after a future trial. Similarly, a settlement that is the same or less than this number is a better, faster, and more certain result.
The advantage of a risk assessment analysis is that it is an objective calculation from those who know best: the lawyers themselves. This avoids a subjective label that a case is great, good, or average, which is difficult for a client to measure. Finally, this work forces you to plan and allocate resources efficiently and appropriately, which is needed more than ever with the changes to the civil system.
The Takeaway
Setting the intention to settle and Implementing a settlement plan as early as possible for your cases will establish the target for each case and guide you as to the runway needed to land the plane. Proactive settlement preparation promotes efficiency, streamlines the case, and keeps you highly focused.
By sharing this approach with your client, you demonstrate your competence and knowledge about the case and help set client expectations for outcomes. In this way, you are unified and working as a team with your client, who then can make informed decisions during mediation.
Less conflict. More resolution.
Miami Florida Mediator
Florida mediation and dispute resolution
Meaningful Mediation is Ethical, Mindful, and Strategic
