Skillful litigation is positioning the case for early resolution. Indeed, experience tells us that only a small fraction of lawsuits are not settled before trial. Settlement driven by common sense and efficiency will achieve the best results for the client. This is best seen in personal injury litigation, where the more time invested in a case often means a lower recovery for the attorney, with little additional benefit for the client. Many business litigators forget this point, in part, because in business lawsuits the parties do not limit themselves to the pursuit of compensation.
Businesses also seek justice, punishment and a leg-up over their competitor.
Generally speaking, business litigators also do not depend on settlement for compensation. They are paid hourly, often at premium rates. The motivation of some attorneys might be to keep the case going and avoid settlement. This leads to the all too common situation where settlement is motived as much by an attempt to cut one's losses as it is to enjoy potential gains. Sun Tzu advises against this purposeless destruction.