The real truth is that litigation is just an exercise in pricing because at its core, it’s a financial transaction. A claim is money in dispute. For the plaintiff, it is an asset they want to maximize. For the defendant, it is a liability they want to minimize. Strip away the personalities, histrionics, and theater, and you are left with math.
Claims as Financial Instruments
Every lawsuit is a financial instrument. The plaintiff files it like they’re acquiring an asset. They invest time, money, and energy with the expectation of a return.
The defendant, by contrast, carries that same lawsuit on the books as a liability. It reduces value, increases cost, and must be accounted for in reserves and budgets. From that perspective, the courtroom is simply where valuations get tested.
Litigation is nothing more than a pricing dispute.
Stripping Away the Noise
Discipline starts by stripping out what does not belong.
- Emotions. Anger, sympathy, or outrage distort valuation.
- Optics. Headlines, politics, or “what it looks like” don’t alter exposure.
- Egos. Pride, grievance, or reputation add fog but no clarity.
This exercise should be devoid of emotion, personalities, histrionics, or hyperbolics. It is and should not personal—on either side.
Recognizing Real Pressure Points
The other danger is underpricing what is truly material. Defendants and insurers often convince themselves that certain risks don’t matter when they
do.
- Venue. Some jurisdictions are simply more plaintiff-friendly. A claim in one county may be worth multiples of the same claim elsewhere.
- Plaintiff’s Counsel. A seasoned trial lawyer with a track record of large verdicts arguably changes the math.
- Key Facts. A single damaging fact, though small in the record, may carry enormous weight with a jury.
The skill is knowing what to strip away and what to weigh heavily. The mistake is confusing one for the other.
The Defense Counsel’s Role
The defense lawyer’s role is simple to describe, hard to execute.
- Identify What Matters. Collect the facts, factors, and law that actually govern valuation. Eliminate the noise.
- Evaluate Rationally. Define the likely settlement range, the probable verdict risk, and the exposure on appeal.
- Communicate Clearly. Present this evaluation to the client in plain, direct language—understandable and actionable.
- Guide Decisions. Help the client make calls based on math, not emotion.
- Set the Path. Establish a timeframe and cost expectation/game plan for resolution.
- Execute with Discipline. Push the matter forward, update the client in real time, and stay aligned with the plan.
Enforcing the Price
Most cases resolve short of trial because the parties align on valuation. When they don’t, enforcement becomes necessary. Summary judgment, trial, and appeal are not philosophy: They are tools to enforce the price when agreement fails.
And here’s the uncomfortable fact about trial: If the parties are sitting in a courtroom waiting on a jury, someone has miscalculated the value of the case. The key is not to be that person.
Litigation as Marketplace
Litigation is a marketplace. Plaintiffs are sellers, trying to maximize the asset. Defendants are buyers, trying to minimize the liability. Discovery, motion practice, and trial strategy are levers to influence the spread.
When the matter resolves, whether by settlement, verdict, or otherwise, the number is nothing more than the market’s clearing price.
The Bottom Line
Clients don’t pay for drama. They pay for clarity. And what they really want to know comes down to three questions:
- What is the claim worth, factoring in all the facts, ancillary considerations like venue, and the governing law?
- What do we have to do to arrive at that price to resolve the claim?
- How long will it take and how much will it cost to get to resolution?
That’s it. That’s the job.
Litigation is math. Claims are assets and liabilities. The defense lawyer’s work is to set the right price, guide the client with discipline, enforce the valuation when necessary, and don’t be the one who miscalculates.
