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Will You Be Successful At Trial? The REAL Facts Lawyers Consider When Assessing Your Case

Commercial Law

Deciding whether or not to go to trial is a difficult decision that ultimately rests on the shoulders of the client. There may be times when your lawyer will urge you to accept a settlement or attempt mediation rather than going to trial. For a client who is certain they will win, this can be frustrating and hard to understand.

Emotions versus facts

Your lawyer will consider the facts of a case, understanding that feelings and emotions may not be relevant when analysing the issue. They will look at the most likely outcome, rather than the most favourable outcome.

However, for you (the client), the legal proceedings are just a part of your experience. You may be angry or resentful about the matter, or you may be apprehensive of the future. Alternatively, you may feel betrayed and seek revenge, or be concerned about the future of your company.

How emotions affect advice-taking

In the study Blinded by anger or feeling the love: How emotions influence advice taking, researchers Gino and Schweitzer found that emotions influenced advice-taking at the personal level.

“In practice, people are influenced by both incidental emotions (emotion unrelated to the decision) and directed emotions (emotions related to the decision context) to influence advice taking…  Participants who experienced incidental gratitude relied upon advice more than did participants in the neutral condition, and participants in the neutral condition relied upon advice more than did participants who experienced incidental anger.”

Basically, the study found that people who were angry at a situation were less likely to take advice (even if that advice was accurate), and ended up with a less positive outcome.

However, people who felt gratitude towards their advisor were more likely to rely on the advice, resulting in a more favourable outcome.

What your lawyer considers when assessing your case

Deciding whether or not to go to trial is a highly emotional time; you may even feel like your lawyer is only looking at the facts of a case and not considering your feelings.

However, it’s important to remember that your lawyer has been professionally trained to assess your specific type of case, and has a legal (and moral) duty to act in your best interests. If they are encouraging you to settle or attend mediation, there is usually a good reason for this.

It may be that your lawyer knows, from experience, how time-consuming and expensive trials can be, especially when there is no guarantee you will win. Furthermore, even if your case is successful, the amount you receive may not be worth going to court, or it may be difficult to collect payment. For example, the ABC found that settling a family court matter through mediation would typically cost $20,000, compared to a litigation cost of $100,000.

Your lawyer may be aware of details about the evidence, wording of the agreement, changes in law or legal precedents that would make going to trial inadvisable. In these instances, you should take the time to understand the motivations behind their advice.

Similarly, your lawyer will urge you to consider the practicality of your expectations and desired outcome. For example, a parent wanting 50/50 custody will be unlikely to receive it if they regularly travel interstate. A public legal dispute with a former employee may not be worth the potential PR fallout. A company may not realistically win an IP case if there is a history of others using the same idea previously. And, as much as you may want an acknowledgement of wrongdoing from the other party, it’s unlikely the Court will force them to say sorry to you.

Deciding whether or not to go to trial

In the end, the decision of whether or not to go to trial will be completely up to you, the client. Your law firm has been hired to represent your interests and wishes, and will do so to the best of their ability, regardless of their personal feelings.

That said, we still recommend heavily considering your lawyer’s recommendation. As lawyers, our assessment is based on years of experience, legal studies, and cases similar to yours, which helps us make informed predictions about the most likely outcome of your trial, and your best course of action.

The team at AV Lawyers have decades of experience in assessing cases. Get in touch with our team today to arrange a free consultation.


Protecting your reputation starts with simplifying the complex. This handy checklist should quickly point you in the right direction and help you understand whether you have a case, and where to start to secure the best possible outocme.