More than 90 percent of civil cases are settled without trail. By contrast, most civil appeals are briefed, argued and decided by the court. In complex cases in which large amounts of money are at stake, settlements pending an appeal seem to be the exception: such appeals frequently go forward to decision without a serious attempt to settle.

There are many reasons for this. Lawyers and litigants who were unable to settle their case before trail express pessimism that a settlement could be reached pending an appeal. A successful plaintiff holding a large judgement, or a defendant who obtained summary judgement, may point to the general statistic that approximately 80 percent of civil judgements are affirmed in the California appellate courts; in the 9th U.S. Circuit Court of Appeals, the rate is about 85 percent. Moreover, both sides will recall their unsuccessful mediation attempts and settlement conferences before the trail, and conclude that settlement after the judgement is even less likely. Unless the appellate court lures them into a court-supervised mediation program (which the 1st District Court of Appeal has discontinued), the case will move inexorably through an appeal process in which at least one party (and perhaps both) will be disappointed in the outcome.

Originally published in Los Angeles Daily Journal on September 11, 2013.