By Dr. Ken Broda-Bahm:
Supporters of America’s traditional jury trials like the idea of a system of conflict resolution based on evidence, reasoning, and the public’s judgment. Those supporters, and I include myself in that group, believe that something is being lost when nearly all disputes that are candidates for such a system are instead resolved through private negotiations and monetary concession. But one hard fact is that the public seems to prefer that private resolution. In the abstract at least, the public would rather have a settlement. In what, surprisingly, appears to be the first systematic survey of America’s attitudes on civil settlement (Bregant, Robbennolt & Winship, 2025) researchers from the University of Illinois and University of Houston surveyed 1005 Americans, finding that 65% agreed that parties themselves should be able to resolve, and when asked what proportion of cases should be resolved by settlement, a clear majority (58%) thought the figure should be at least 75%, with the most common answer (given by one in five) being that the figure should be 100%.
Based on Federal Rule 408 and parallel state rules, information about settlement generally does not come before a jury. Even without that confirmation, however, we know from mock trial observations and from post-trial interviews with jurors that jurors often theorize and speculate about real and imagined settlements and offers. This “off stage role” for settlements can be important in some cases. For example, the researchers referenced above note other studies that have confirmed that jurors will attribute responsibility and blame to parties that settle. In trial, jurors’ views about specific parties and settlement won’t be abstract, but will depend on the parties’ credibility and role in the case. Based on my experience with mock jurors and real jurors, I believe that settlements can play several different roles in jurors’ views on the case.
The Empty Chair Settlement
The first way that a speculative settlement might play a role in jurors’ understanding of your trial story is through the “empty chair,” or the party who is conspicuously missing in the litigation. The common assumption, backed up by some research, is that if jurors believe that chair is empty because that party bought their way out of the case by paying a settlement, then jurors are likely to see that party as responsible, and to see the case as — to a degree at least — as being resolved. My experience in practice though is that it is easy to oversell that tendency. For example, a common occurrence is for jurors to briefly note the role of the missing party, but then move past that in order to easily focus on the party that is in front of them. In other words, jurors do seem to frequently compartmentalize by saying, in effect, “There may be a strong case against this missing company…but that’s not the case we have before us.” The chair is empty, after all. We have also seen it happen that jurors will make other assumptions about a party’s absence, for example speculating that the party might be a named defendant in another trial.
For the still-present defendant, the implication of that, if you feel there’s a case against the empty chair, don’t assume that jurors will fill that in themselves. To the extent that admissibility allows you do, prosecute that case.
The Missing Settlement…
Even when there isn’t an absent third party, jurors will commonly still speculate about the attempted settlement history involving the parties before them. It is generally the case that at least a few on the jury will understand that offers from both sides are common and that the majority of cases will be resolved through settlement without a jury ever being involved. So that knowledge often leads them to the questions, “Why didn’t the dispute resolve?” and “What is different about this case?” While they could blame both sides for this, based on the case story and the parties’ relative credibility, the blame for this road-not-taken is likely to fall more heavily on either the defendant or the plaintiff.
…Is the Defendant’s Fault
If the jury is leaning against the defendant on liability, they’re also prone to believe that the case is here in this courtroom because the defendant is not taking responsibility and has not stepped up to make a reasonable offer to compensate for the plaintiff’s losses. The implication for defendants is to reinforce the point that losses alone do not justify an offer or an award:
It is normal when you see a bad outcome to want to help. We feel that way, I’m sure you feel that way too. But we have a legal system dedicated to the idea that the facts, the evidence, and the law all matter. And we are here contesting this case because the company acted appropriately, responsibly, and legally in this situation.
Even without mentioning settlement, you can still clarify for jurors the reason it hasn’t settled.
…Is the Plaintiff’s Fault
Again, depending on how jurors view the role and the credibility of the parties, they might place responsibility on the plaintiff for the case not having resolved prior to trial. The most intuitive and accessible reason why it might be the plaintiff’s fault is because they are asking for too much. This speculation might be especially salient in those cases where the defendant is either acknowledging some level of error and responsibility, or offering a well-supported counter-anchor of what the reasonable damages would be if the jury were to get to the point of awarding damages. One indicator of how much jurors think about settlement is that in mock trial deliberations, we often see jurors refer to this defense number as an “offer,” rather than as a conditional statement about reasonable damages. The jurors’ assumption is that, if a defendant is willing to suggest the number as part of their trial defense, then they probably suggested the number as part of an effort to resolve the case with plaintiffs. If a defendant were to try to leverage that suspicion, they might try a message like the following:
There is a reasonable number on damages. You will hear our expert go through the basis for that number, and you will see that it is based on the facts and the medical records, and that it makes a number of assumptions in the plaintiff’s favor. And it is important to know, that expert’s number, and facts, and full report — that was all delivered to the Plaintiff as part of discovery in this case. They have it. Yet, here we are in a courtroom, months later. Why?
Ultimately, if you do find yourself in a courtroom after other attempts at resolution have failed, all is not lost. Going back to public views of settlement, it is important to note that a minority, but a still-substantial group is skeptical of settlement for some of the same reasons why some attorneys and legal thinkers favor the courtroom. For that group, it is not necessarily a bad thing to rely on a legal process based in evidence and the law. In the survey, opinions cut both ways, with 45% agreeing that “settling parties are more interested in money than justice,” but close to 40% agreeing that settlements potentially allow “wrongdoers” to “escape justice.” So when that group is in the jury box, they might be in exactly the right place.
____________________
Other Posts on Settlement:
- Defendants, Don’t Automatically Avoid the First Move in Settlement
- Resist the Judge’s Nudges: Sometimes Trial Is Better Than Settlement
- Don’t Forget About Happiness: The Settlement Series, Part Four
____________________
Bregant, J., Robbennolt, J. K., & Winship, V. (2025). Settlementality. Journal of Empirical Legal Studies.
Image Credit: Shutterstock, used under license