If you do decide to sue the person who made a defamatory statement about you, one thing you and your attorney will be considering throughout your case is the possibility of settlement. The majority of civil lawsuits today resolve before trial, so most defamation claims never reach a jury. While the right to a jury trial is indeed important, sometimes taking a case all the way to trial is not worth the risk. It is your attorney's job to advise you about the relative risks and benefits of trial in your particular case, but it is ultimately your decision whether to settle or not.
Factors That Bear on the Settlement Decision
The impression you make. Bear in mind that during the entire litigation process, the defendant's attorney is evaluating you. Every step of the case, from answering written questions posed by the defense, called interrogatories, to being interviewed in person under oath (a deposition) provides an opportunity for your opponent's lawyer to size you up. He or she will be thinking about what kind of witness you would make if your case did reach a jury, your credibility, and how sympathetic you and the facts of your case may be to a jury. Making a solid, favorable impression is important because if things are going well for you, the defense is more likely to want to settle before trial, and is more likely to make an offer that is truly worth considering.
The type of harm you suffered is also an important part of the settlement decision. If the harm is mainly financial, such as losing your job or incurring medical bills because of the effects the defamation had on you, and the defendant is willing to appropriately compensate you for that harm, settlement may be beneficial. However, if the harm is primarily to your reputation or standing in the community, it may be better to take your case to trial because of the vindication that may provide for you if you are successful. Juries are unpredictable, and that is also an important consideration.
In addition, the longer a case goes on, the more expensive it will become. Some lawyers take defamation on a contingent fee basis, meaning they get a percentage of your recovery, but only if you win. However, some will require a deposit, called a retainer, and then charge by the hour. The latter arrangement is, of course, far more costly. But even if your lawyer takes the case for a contingent fee, you may still be responsible for other costs, such as copy charges, travel expenses, or even expert witness fees, if necessary. Those costs add up throughout the case, and they either must be paid separately or they too come out of your recovery. If a case goes to trial, sometimes the percentage your lawyer gets will increase. Read his or her fee agreement carefully and ask any questions you have before signing it so you know how it will impact your bottom line.
Finally, one settlement issue that is unique to defamation cases is that the subject of your case is a false, damaging statement about you. It is bad enough to endure the publication of that statement, but a trial will mean the repeated publication of the statement. Drawing more widespread attention to the statement may make things worse than they were before, because the information could reach more people. This may not matter to all plaintiffs in defamation cases, but for some, it will be an important factor to remember if a good settlement offer is made.
It's Your Call
Ultimately, of course, it is up to you whether to resolve your case without going to trial. Only you know whether you have the patience and resolve to endure the entire litigation process. Sometimes people settle their cases because they are tired of the fight and just want it to be done. Others cannot handle the toll on them financially and in terms of stress. But, to some people, having their day in court outweighs all of that. When a settlement offer is made, carefully consider all of these things and make the decision that you feel is best for you.