Prosecuting a Case

By Aaron Bundy

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General

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Last Modified on Jun 10, 2025

It is simplistic but true that the only two ways to resolve a lawsuit are by settlement or by trial. “But what about arbitration?” Arbitration is a trial. There are procedural rules and witnesses and exhibits at arbitration. “What about mediation?” Mediation means settlement. Lawyers and some litigants sometimes behave as if there is a third way. They never make evidentiary disclosures, they won’t issue discovery or respond to discovery in time, they won’t participate in scheduling depositions, they won’t make a settlement offer, yet they are never ready for a pretrial conference or trial and any motion for trial will inspire them to ask for some discovery or express a newfound interest in mediation.

The inverse fallacy goes as follows: “All cats are mammals. This animal is a mammal, therefore it must be a cat.” This is obviously not true. By getting ready for trial as thoroughly and quickly as possible, you simultaneously increase and maximize your chances of settlement. You know the case better and the facts and the admissible evidence and have a strong narrative for negotiations. However, the inverse is not true: hoping and praying for settlement, and even going to mediation, is not getting for trial. It is actually worse than that: by not getting ready for trial, and by not even thinking about trial, in hope of settlement, you actually impair your chances of settlement, or at least a good one.

This concept: that getting ready for trial early is critical to, and even enhances, successful settlement negotiations, is in conflict with the “third way” approach: not get ready for trial, and not make a serious settlement offer. The party seeking to move the case along by preparing for trial will encounter resistance in many forms. The other side will deny receiving correspondence. They will use boilerplate objections to obscure discovery responses. They will never be available for a deposition. They will get COVID the night before any major event. And if you manage to push them to the limit and even force them to check the box and attend a mediation that they were never ready for, at pretrial conference they will request a mental examination or a guardian ad litem or some other low-hanging fruit that the judge will likely grant even at that late stage and delay the case for another 90 – 180 days.

Knowing this, there are significant psychological advantages to driving, or prosecuting a case, even when you are not the moving party. How do you prosecute a case? Here are some true stories:
Our client wanted to bring a case and time was of the essence. When we filed her petition, we followed our preferred litigation strategy, which suited her interests. The other side was served with the petition and summons, all of our trial exhibits, page-numbered and exhibit-marked, written discovery requests, a comprehensive settlement offer in the form of a final consent judgment with a “sign here” flag, and a cover letter explaining the contents, listing 3 mediators we would mediate with, and proposing 6 dates for his deposition. That case closed that same week.
Our client walked in holding a motion containing damning allegations. I read them and looked up, and the client said, “None of that is true.” He then showed a number of text messages and other documents that directly contradicted the filing. We put together all of his evidence, page-numbered and exhibit-marked for trial, wrote tailored discovery requests that incorporated the exhibits by reference, wrote a one-page go-away consent judgment settlement offer, and a nice cover letter to opposing counsel listing 3 mediators we would mediate with (with mediation dates) and proposing 6 dates for the other side’s deposition. That case closed the same week.
In a third case, we went through intensive discovery and made a written settlement offer before mediation. We left mediation with a tentative “I’ll sleep on it” from the other side. He went dark, so we re-sent our settlement offer, then we filed for a pretrial conference. The other side opposed pretrial conference, hoping there was a third way. There is not. We won everything at trial and our client was awarded all of her attorney fees and costs incurred during the entirety of the case.

Do all cases go exactly like this? No. But we are almost always the first to make a written offer. Even when it’s the other side’s motion, we choose the mediators and send out the initial round of dates. Then, if we don’t settle at mediation, we file for trial the next day and the other side just goes ape. “We’re not ready durr we haven’t even dun depositions” in a case that’s 14 months old. And we keep pushing until the other side gets real or our client gets a verdict. The process only works when the client buys in and sees the value in gathering and organizing evidence and staying focused on the end goal.