To Settle, or Not to Settle,That Is the Question

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If you’ve been seriously injured because of the negligence or intentional act of another party, you should consider retaining an attorney to help you obtain compensation for those injuries. If you start down this path, avoid any fantasies you may have about dramatic courtroom confrontations like those you see on television, because there’s a very good chance there will never be a trial. Nearly all personal injury cases settle before going to a jury.

In most cases the parties reach a good faith, reasonable settlement agreement. Usually the plaintiff and the insurance company representing the defendant agree on a sum of money that helps the plaintiff adjust to his or her post-injury life and the insurance company puts an end to a potential liability that could have been a much bigger hit.

Settlement is more than an agreement, it’s
a process. It’s very rare that a plaintiff’s first demand will be accepted. The parties will exchange some information, get an idea of the value of the case and negotiate back and forth until an agreement is reached. Sometimes a mediator is used to move the process along.

The parties need to be reasonable and rational

Settlement requires that both parties be reasonable and that a plaintiff be able to detach himself emotionally as much as possible.

• If an insurance company decides it’s going to make more money by playing “hard ball” with every injury claim and make every plaintiff’s life a living hell by fighting every case, that’s not reasonable. Some plaintiffs will get fed up and give up, while others will plow ahead and deal a spectacular loss to the insurance company.

• Plaintiffs can be unreasonable too. They may have wrapped up too much of their life into a lawsuit, or want to punish the defendant, and not be amenable to a fair settlement.

Build it up, tear it down

There’s an old saying that lawyers need to build up a case to litigate it (by telling the judge and the other attorney what a great, strong case it is) and tear it down to settle it (telling the client all the weaknesses of the case, the risks of failure if the case goes to trial). Lawyers wear many hats, depending on where they are and who they’re talking to.

• When in court, attorneys fight hard for their clients. When meeting with clients behind closed doors to discuss settlement, they are just as diligent when it comes to evaluating a case.

• Lawyers do their clients no favors by unduly painting rosy pictures and sugar-coating the facts and applicable law (and an attorney doing so may plant the seeds of a legal malpractice case if the case ends badly for the client).

• Lawyers have an ethical duty to fully inform their clients about their cases so they can make informed decisions about how to handle settlement negotiations.

Why you should settle your case

Going to trial may not be worth the risk if there’s a reasonable settlement offer from an insurance company.

• Trials are very expensive in terms of money, time and energy. The time of attorneys and their support staff is very valuable and expensive. The parties often are not able to work, take care of their families or run their businesses. There are lost opportunity costs when everyone is in the courtroom and not doing more productive things elsewhere. Depending on the complexity of the case, it could take years to get to a trial; and if the outcome is appealed, more years could pass before there’s a final decision.

• In some ways a trial is a crapshoot. Attorneys for both sides may have a good idea as to how they think a case will be decided, but ultimately it’s just an informed guess. Judges and juries can be unpredictable; if you choose not to settle, you give up control of the outcome and hand it over to the judge and jury. The more money at stake, the greater the risk. A plaintiff may receive a reasonable settlement offer, decide to risk a trial, and walk away with nothing. An insurance company could also reject a reasonable settlement demand, go to trial, and later face a substantial verdict against their insured.

There are many valid reasons a plaintiff may want to settle a case.

• The foundation of a personal injury case lies in its facts. If the facts of the case aren’t very strong or may be called into question, the risks of case dismissal are higher. If there were no witnesses other than the parties, no security video to rely upon and each side’s experts have reasonable but contradictory explanations for the accident, it may be best to settle. Plaintiffs have the burden of proof. If that burden can’t be carried, the case will be dismissed.

• The plaintiff may have played a substantial role in causing the accident. Depending on applicable state law, that can mean the case could be dismissed or the damages could be greatly reduced. A lot of time, energy and money could be spent only to lose a case at trial, or you may be successful but walk away with a limited jury award.

• The witnesses, perhaps even you, could have a very hard time on the witness stand and risk a jury's not believing or liking you or your witnesses. Perhaps you have no memory of the accident and no other witnesses to back you up. You may become very tense or very angry with the other party (or his or her attorney) while on the witness stand, making success that much more difficult.

Settling a personal injury case isn’t an admission that it isn’t strong or that you’ve lied about your claims. A settlement could be a very positive one, where you reach all, or most of, your goals without incurring the costs of a trial. It’s simply being rational, logical and using your common sense if you’re presented with a fair settlement offer. For most plaintiffs, the risk of losing what they’ve been offered isn’t worth the gamble.

ABOUT THE AUTHOR: Steven H. Heisler
Steve graduated from the University of Baltimore Law School in 1988. Since that time, he has represented thousands of injured people, helping them find some measure of justice after they were wrongfully hurt or lost a loved one due to someone else’s negligence.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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