Not Settling for Settlement

Following a successful trial, a Davis Graham & Stubbs partner examines the delicate balance of one of the age-old legal questions

As soon as the case was filed in 2013, Davis Graham & Stubbs partner Jon Rauchway started thinking about settlement. Rauchway, tasked with defending an oil and gas operator against a wealthy Nevada rancher who’d accused his client of polluting the ranch land, had already been thinking about settling for at least a week, since the moment he had received the plaintiff’s demand letter citing half a billion dollars in statutory penalties.

Fast forward to this spring: Rauchway’s client, Atlantic Richfield Company, decided instead to go to trial, a rarity in big-money civil cases. After hearing three weeks of testimony and legal arguing, the jury spent only about two hours deliberating before finding in favor of the defendant. “A lot of the credit goes to our client on this,” said Rauchway, one of several lawyers, mostly from DGS, who worked on the case. “A lot of companies never would have tried this case just based on the essential facts.”

It’s long been established that the vast majority of civil cases are either settled or dismissed before trial. More than a decade ago, the Department of Justice released a report examining settlement rates in state courts in the 75 largest counties across the country. Of the cases considered, the report showed that about 97 percent were either settled or otherwise concluded prior to trial. And not much has changed since then, said Scott Moss, a professor at the University of Colorado Law School. “I think it’s been pretty consistent for the past decade or two,” Moss said. “There’s a tremendous pressure to settle, partly due to legal fees and a desire to avoid uncertainty.”

To read this story and other complete articles featured in the August 6, 2018 print edition of Law Week Colorado, copies are available for purchase online.