Is settling after a trial has started possible? For individuals and businesses already deep into a California civil lawsuit, settlement often remains not only possible, but strategically advisable. Many civil actions resolve after the trial date has arrived, sometimes even after witnesses have testified or a jury has been empaneled. Understanding how and why parties settle during trial, and what legal safeguards apply, allows litigants to protect assets, manage risk, and avoid the uncertainty of a court-imposed judgment.
In this article, we’ll explore when you can settle during trial, how judicial settlement conferences work, and what cost-benefit and enforceability issues must be evaluated before accepting or making a late settlement offer.
Can You Settle During Trial in a California Civil Case?
In California, a civil case can be settled at almost any stage, including during trial. Courts strongly encourage voluntary settlement as a way to conserve judicial resources and reduce litigation costs for the parties involved. Moreover, there is no rule in the California Code of Civil Procedure that prohibits settlement simply because trial has begun.
Settlement may occur:
- Before opening statements
- During a jury trial after evidence has been presented
- During breaks ordered by the court
- After a judicial settlement conference
- Even while a jury is deliberating, as long as judgment has not been entered
This flexibility applies in most civil litigation cases and even in some small claims cases, though procedures differ.
How Judicial Settlement Conferences Work Once Trial Has Started
What Is a Judicial Settlement Conference?
A judicial settlement conference is a court-supervised negotiation led by a neutral judicial officer, often referred to as a settlement judge or settlement conference judge. This neutral officer may be the trial judge assigned to the case or a private judge brought in solely for the purpose of evaluating the strengths and weaknesses of the case. Their role is to facilitate productive discussion, assess litigation risk, and encourage resolution.
In California superior court, these conferences may be:
- Scheduled before trial as part of a pretrial conference
- Ordered during trial when the court believes settlement is realistic
- Conducted in person or by telephone, depending on court resources
Parties are usually required to submit a settlement conference statement outlining the claims, defenses, settlement history, and remaining obstacles.
For reference, see California Rules of Court, rule 3.1380 and related guidance from the Judicial Council.
Why Courts Encourage Settlement During Trial
Once trial begins, the realities of litigation become clearer. Evidence has been admitted, rulings have been made, and attorney’s fees continue to increase daily. Judges often recognize this inflection point and may pause proceedings to allow meaningful negotiations through mediation or a judicial settlement conference.
How Does Risk Analysis Change After Trial Has Begun?
How Trial Developments Can Affect Leverage
Once a trial begins, litigation risk stops being theoretical and becomes observable. Pretrial strategy is largely based on forecasts, written briefs, and assumed rulings. During trial, however, parties gain real-time insight into how the judge or jury is reacting to the evidence, witnesses, and legal arguments as they are presented in court. This immediate feedback allows individuals and businesses to more accurately assess the strength of their position and the likelihood of specific outcomes.
The following uncertainties often become apparent once trial begins:
- How a judge or jury is responding to evidence
- Whether expert testimony is persuasive
- How credibility issues are playing out
- The likelihood of sanctions or adverse rulings
A party that felt confident before trial may reassess their strategy after unfavorable testimony or evidentiary rulings. Conversely, a party facing trial may see improved leverage if the opposing case appears weaker than anticipated. Once the true risks of proceeding to verdict become clear, parties often find themselves seriously considering settlement discussions in an effort to avoid unfavorable outcomes that might arise from continued trial.
Jury Trial Risk Versus Judicial Risk
In a jury trial, settlement risk includes unpredictable jury dynamics and emotional responses. In a bench trial, risk centers on how a single judicial officer interprets the law and facts. That said, in both instances parties are able to evaluate these real-time signals and determine whether settlement is the best path moving forward.
What are the Cost-Benefit Tradeoffs of Settling During Trial?
Escalating Attorney’s Fees and Trial Costs
Trials are expensive. Each additional court date increases attorney’s fees, expert costs, and internal business disruption. In some cases, a party may “win” the trial but still lose financially if legal fees end up costing more than the recovery itself.
That said, settling during trial can:
- Cap ongoing legal spend
- Avoid post-trial motions and appeals
- Reduce the risk of non-collection
- Preserve business relationships and reputation
Individuals and businesses alike should stop and consider whether the costs of an ongoing lawsuit are worth the potential payout they may receive down the line. The earlier this cost-benefit tradeoff is considered, the more parties can minimize legal fees and disruption to business operations.
Comparing Settlement Offers to Potential Judgments
A sound cost-benefit analysis requires more than asking whether you can win. It involves measuring what continued litigation will realistically cost against what you are likely to gain. When evaluating whether to accept a settlement or proceed through trial, parties should weigh several interrelated factors.
1. The Probability of Winning or Losing
First, consider the probability of winning or losing based on how the case is actually unfolding. Trial exposes strengths and weaknesses that may not have been apparent during pretrial motion practice. Adverse evidentiary rulings, inconsistent witness testimony, or a skeptical response from the judge or jury can materially reduce the likelihood of a favorable outcome, even in cases that once appeared strong.
2. The Expected Judgment Amount
Second, evaluate the expected judgment amount in practical terms. A potential verdict must be discounted by the risk of losing and the possibility that damages awarded may be lower than anticipated. Courts may limit recovery through jury instructions, statutory caps, or judicial discretion, which can significantly affect the final number.
3. The Likelihood of Collecting or Enforcing a Judgment
Third, assess the likelihood of collecting or enforcing a judgment. A favorable verdict does not guarantee payment. Businesses and individuals must consider whether the opposing party has recoverable assets, insurance coverage, or the ability to satisfy a judgment without prolonged enforcement proceedings. In some cases, enforcing a judgment through levies, liens, or court orders can take months or years and generate additional legal expense.
4. Exposure to Attorney’s fees or Shifting Costs
Fourth, account for exposure to attorney’s fees and shifting costs. Hiring a civil litigation attorney is necessary outside of small claims court, and, as trial continues, legal fees accumulate rapidly. Some civil cases also carry the risk that the losing party will be ordered to pay the opposing side’s attorney’s fees or litigation costs. This exposure can dramatically increase financial risk and turn a potential win into a net loss.
When these factors are weighed together, settlement often becomes a strategic business decision rather than a concession. In certain situations, a partial agreement or conditional settlement can resolve high-risk or high-cost issues while allowing the remaining disputes to proceed in a more limited and controlled way. This approach can reduce uncertainty, contain expenses, and preserve leverage without requiring an all-or-nothing outcome at trial.
Are Late Settlements Legally Enforceable?
Enforceability Under California Law
Yes, under California law settlements reached during trial are enforceable if properly documented. Most are reduced to a written settlement agreement or placed on the record in open court. Under Code of Civil Procedure section 664.6, courts can retain jurisdiction to enforce settlement terms through a court order.
Common Enforceability Issues to Address
Late settlements must clearly address:
- Payment terms and timelines, including any payment plan
- Dismissal with or without prejudice
- Allocation of attorney’s fees and costs
- Confidentiality and non-disparagement
- Conditions precedent and time limits
Ambiguous terms or informal agreements increase the risk of post-settlement disputes.
Negotiate From a Position of Strength With Experienced Litigation Counsel
Settling during trial is not a sign of weakness. It is often a strategic decision made with full awareness of risk, cost, and long-term consequences. For businesses and individuals navigating an active civil case in California, late-stage settlement can preserve capital, protect reputations, and bring certainty where trial outcomes remain unpredictable.
At Law Advocate Group, LLP, our Los Angeles civil litigation attorneys represent clients throughout Southern California in business litigation, contract disputes, and employment matters. We advise clients at every stage of the settlement procedure, from pretrial conference negotiations to judicial settlement conferences during trial.
If you are considering whether to settle during trial, speak with an experienced litigation attorney who understands how to negotiate effectively under pressure.
Contact Law Advocate Group, LLP today and negotiate from a position of strength.
FAQ
Yes, a case can still be settled during trial even when witnesses have already testified. Settlement can occur at any point before judgment is entered, regardless of how far the trial has progressed.
Many cases settle before trial, but a significant number resolve during trial once risks and costs become clearer.
Yes, mediation remains a viable form of alternative dispute resolution even after trial begins. A mediated settlement conference allows a neutral mediator to help bridge gaps that direct negotiations cannot resolve.
While many cases settle before trial, it is a misconception that most trials settle only during early mediation. In practice, settlement timing varies widely based on risk tolerance, court rulings, and business pressures.
Yes, settling during trial requires court approval, especially if the case involves specific issues like child support, residential tenant matters, or small claims court rules requiring judicial oversight.
No, a judge cannot force a settlement during trial. Settlement must be voluntary. However, a judge may strongly encourage negotiations and impose sanctions for failing to participate in required settlement procedures in good faith.
If a settlement is reached during trial, then the court will typically vacate remaining court dates and issue an order dismissing the case once settlement terms are finalized.
The confidentiality of settlement discussions depends on several factors and is subject to Evidence Code confidentiality rules.
