AN ILLUSTRATION

Lawyer X was interviewed by A, who had been injured in a collision with B while both were driving on the highway. A's version of the affair was that he was driving at a moderate pace when he met B, who was coming at an excessive speed. B's heavy wagon collided with A's light rig and tore off the rear wheel and badly wrecked the carriage. A himself was thrown out and injured. There was one witness, according to A's version, a neighbor C, who was in the carriage with him at the time. C verified A's story, and both men reported that B had used abusive language to them, both at the time and after the accident. B had refused to settle for the damage done.

Lawyer X, after notifying B of his having been retained, brought suit and attached B's property. Shortly after suit was entered, X discovered sundry evidence tending to discredit the stories of A and C. As the time of trial drew near, he learned more and more to the disadvantage of his client.

At the trial it was alleged, and fairly proven by the evidence, that A and C had conspired to extort money from B by means of a bogus accident. The injured vehicle was a rattle-trap affair fit only for the junk-heap. A and C had been overheard by witnesses to boast that B would be "easy money," since he always drove fast horses,

and an accident could be easily arranged. It was shown further that previously in the same evening they had met B, and he had narrowly avoided running them down. When the accident occurred, they had made believe turn out around an excavation in the street, and B had been unable to avoid striking them.

They had tried to extort money from B and, upon failure so to do, had threatened him with legal proceedings. The case was so evidently fraudulent that even lawyer X, who had acted innocently enough, was suspected to be a party to the attempted fraud. The jury found for the defendant. A and C disappeared, and lawyer X received nothing for his services except some very embarrassing and humiliating experiences.

§ 44. DUTY IN ATTEMPTS TO SETTLE.

Before any efforts at settlement are made, the exact damage to the plaintiff should be ascertained, or at least so nearly as is possible under the circumstances. A hasty settlement without due consideration of the various elements of damage can be productive of nothing but regret and dissatisfaction later on. The damage first apparent may be the least of the damages caused, and if the case is settled on the basis of the damage first disclosed, there is no redress for that subsequently appearing.

AN ILLUSTRATION OF THE DANGER OF HASTY SETTLEMENT

Y was injured slightly, as he thought, in a railroad accident. On the same day he consulted a lawyer, and the claim agent of the railroad was soon closeted with the lawyer and client. Y settled on the spot for an insignificant sum. That night serious trouble developed, and Y became an invalid and remained so for several months. Throughout his illness, he noted the growing items of expense with bitter thoughts of his own and his lawyer's rashness in settling as they did, for the damages to which he was rightfully entitled should have been fifty times the sum actually received.

EVERY ELEMENT TO BE CONSIDERED

The lawyer, in justice to his client and to himself, should consider the question of the amount of damages from every possible view-point before deciding the terms upon which he will settle.

AMOUNT OF PRELIMINARY OFFER AS COMPARED WITH ACTUAL DAMAGE

In making the preliminary offer of settlement, due allowance must be made for the fact that a compromise of the claim is the customary mode of settlement. It would be unwise to set the claim at an amount too close to the minimum estimate

of damages. This does not mean that one should demand an unreasonable sum in the hope of securing an advantageous compromise. It does mean that the sum should be sufficiently high to allow some flexibility to the negotiations. A firm, manly stand, without haggling or attempt to drive a sharp bargain with the adversary, should do much to secure a fair settlement and to add to the lawyer's reputation as a worthy member of the profession.

§ 45. NEGOTIATING FOR SETTLEMENT WITH THE ADVERSE PARTY.

It is the duty of the lawyer both to himself and to his client to exercise caution in dealing with the adverse party. He should constantly bear in mind that the adversary is really an enemy whose interests are antagonistic to those of his client. A smiling face and an insinuating manner may count for a great deal socially, but when an enemy employs them to discuss the terms of settlement the lawyer should beware lest he unconsciously be weakened in his client's cause. The "good fellow" is nevertheless the enemy.

WHEN THE ADVERSE PARTY ATTEMPTS CAJOLERY

It may be that he will employ something more than the smile and the insinuating manner. He may drop the hint that he has some legal work in

view that a friend has advised him to give to this very lawyer, and that he was on the point of turning it over to him and would do so after the present difficulty is adjusted. Such transparent ruses can scarcely influence a level-headed lawyer, but it so happens occasionally that the adverse party actually offers the attorney a case or convinces him that employment will be forthcoming. It is needless to say that the attorney who allows himself to be thus tempted will be less antagonistic in dealing with the adversary.

EFFECT OF LESSENED VIGILANCE FOR CLIENT

The only proper method to pursue is to set oneself unflinchingly to the task of gaining the best possible terms for the client without thought of consequences as to future relations with the adversary. A lawyer who lessens his vigilance in behalf of his client can never expect the confidence of the adversary. It would be natural to suppose that he would betray any client if occasion arose when it was for his own interest so to do. But the lawyer who gives the adversary a severe beating becomes at once a desirable man in his eyes. and will very likely be sought out with offer of employment when the present litigation is closed.