I have been hearing the mantra for over twenty-six years. At first it was rare, but it has increased over the years, almost to the point where it's a given. The advocate of the mantra is usually a judge, or a mediator, who was once a judge. The following is the typical mantra, exposed by a not so typical response.

"Come on, Mr. Pappas. This case is worth something. They sued you. You didn't get it dismissed. Even if you have an 80% chance of obtaining a defense verdict, which no case I have ever seen is that strong, the case is worth something for settlement. How much will they board? $750,000? Minimum of $750,000? Probably $1.5 million. The jury won't be offended by that amount. What's 20% of $1.5 million - - that's $300,000. Sounds like the case is worth $300,000 - - at least. How much is it going to cost your client to ramp-up for trial and try this case - - and that's without considering any appeal? $80,000 maybe $125,000 - - let's say $100,000. Sounds to me they are going out of pocket $100,000 no matter what. If they add another $200,000, maybe $300,000, maybe they can get rid of this case and close down yet another claim. I mean, I use to work for insurance companies in my younger days. They wish to avoid expenses any way they can. They certainly wish to avoid risks. So why not avoid the possibility of a jury maybe, just maybe, returning a verdict of $1.5 million or maybe more. It would save them more than $1 million dollars. Come on, every case has a settlement value."

"Well Judge," I responded, "I hear you. And I know from your perspective what you say is what is true."

"What do you mean from my perspective?"

"Well, frankly, you want cases to settle. You believe that saves the taxpayer and consumer money in the short and long run by avoiding the costs associated with the trial. Moreover, you can settle other cases if you are not in trial. And, if a case settles it's done for good. No appeals and no re-trials. From your judicial perspective, settlement - any settlement - is a good thing. I've never had a judge or mediator ever tell me that we were offering too much money to settle."

"Well, I'm not saying pay everything they are demanding. It's just you and your client are offering nothing. I mean nothing. And I can't settle a case if you refuse to make any settlement offer."

"Judge, I don't want to offend you."

"You're not offending me, what would you like to say?"

"My client knows there may be a 20% chance it does not get a defense verdict. My client knows that the plaintiff will likely ask for $1.5 million dollars, maybe more. And my client understands the arithmetic of applying 20% to that $1.5 million dollars and coming to a so-called business decision or settlement value of $300,000. My client, I assure you, is fully aware that it will spend at least another $100,000 defending this case, which will never be recovered. But, there is also one other thing my client knows. It knows it did no wrong and it shouldn't be held liable for any of these damages."

"But Mr. Pappas, a jury may see it differently."

"We know that Judge. But that doesn't change the fact that we also know we shouldn't be held liable."

"Sounds to me you and your client are a little naive. Juries don't always do the right thing."

"We know juries are fallible. We know trials are unpredictable messy things. We know all this. But we also know we shouldn't be held liable for these damages and, frankly, regardless of the outcome of this case now or on appeal, nothing is going to change our mind that we believe we shouldn't be held liable for these damages. The fact that a jury, or a trial judge, or an appellate court, may get it wrong is a risk we have no choice but to take - - but my client chooses not to be a hypocrite and pay extortion money when it knows it did nothing wrong."

"Mr. Pappas, wait one second. I'm not suggesting any such thing. But don't you think you and your client are being just a little bit foolish? You do have a choice. What about offering a $100,000? Your client has to incur that anyway - - and if you get this case dismissed for $100,000 your client really has won."

"Judge, we sincerely appreciate your efforts and your perspective. There is much common sense to what you say. It may be a wise business decision to settle for $100,000 since my client will be out that amount of money no matter what. My client knows this. But my client also knows it shouldn't be liable for any damages in this matter and therefore, my client would rather incur the costs of defense and the risk that our civil justice system may provide an unjust result, rather than pay the other side $100,000 for doing nothing wrong."

"I'm a little bit baffled. I'm not sure if in fifteen years on the bench I've ever had a defendant, let alone an insurance company, refuse to pay anything to settle a case."

"I know Judge. It's very rare. I hope you're not upset because my client has such a strong conviction that it shouldn't be held legally responsible for these damages and is willing to incur the risk that our civil justice system may get it wrong."

"I just hate to waste a whole week in a trial in a case that can and should be settled. I'm not upset with you or your client. You have every right to a jury trial. I'm certainly not going to deny you that right. It's just, I'm surprised and a little bit frustrated."

"Believe me Judge, I understand your surprise. It is very unusual."

The truth of the matter is that our judicial culture, with its norms and values, is full of this attitude and pressure that every civil case has settlement value and if any party refuses to acknowledge that, the whole weight of the civil judicial system is brought down upon their shoulders to convince them otherwise. Of course, this kind of pressure, along with the increased costs of defending litigation, thereby increasing the so-called bottom line settlement value known as "nuisance" value, has the effect of increasing the settlement value of all civil lawsuits, no matter how frivolous.

I wonder, if instead of giving in to this pressure to settle, when a defendant believes that it shouldn't be held legally liable for the damages claimed, such defendant refuses to make any settlement offer, what would happen? I speculate that initially there would be a lot of push back by the system. Initially, jury trial dockets would get over crowded. Maybe even more trials will occur. But then, possibly, in the not too distant future, we may actually find less frivolous lawsuits brought in the first place and, just maybe, the courts would rediscover the appropriateness and usefulness of granting summary judgment as opposed to spending a week or two in trial only to then grant directed verdict. Meanwhile, I wonder what it says about our civil justice system when our courts are baffled because a defendant refuses to make any settlement offer because it believes it should not be held legally liable for the damages claimed.