Personal injury claims have many different phases, but it is helpful to view them as being in either the pre-lawsuit filing stage, the post-lawsuit filing stage, or trial. Personal injury plaintiffs and their attorneys must first decide if they are willing to settle the claim before filing a lawsuit and, if not, must eventually decide whether to take the case to trial.
Deciding whether to settle a claim or involve the courts is one of the most important decisions in any personal injury claim, and it should only be made after careful deliberation. The settlement decision ultimately rests with the plaintiff, but retaining an attorney experienced in personal injury law to help decide whether or not to settle is both typical and advisable.
Of the many factors typically considered in the settlement decision, the most important is the nature of the offer received from the defendant (usually through his or her insurance carrier or lawyer). If the defendant is willing to extend an offer that satisfies all or most of what a plaintiff wants from the claim, then the claim will usually settle without court involvement. On the other hand, if a plaintiff and defendant cannot see eye-to-eye on the value of a claim, a lawsuit will likely be filed against the defendant -- sometimes simply as a way to get leverage in negotiations, and sometimes with every intention of taking the matter all the way to trial.
The vast majority of civil cases -- including personal injury cases -- settle without going to trial, a fact confirmed by numerous studies over the years. While the statistics vary depending on the study, it is clear that at least 80 percent and possibly over 90 percent of all personal injury cases are settled before trial.
The exact reason a particular case was settled and not tried inevitably depends on case-specific facts and circumstances, but here's look at some of the more common reasons why most injury cases are resolved via settlement:
Trials are inherently risky for both sides. Plaintiffs who reject a settlement offer but lose their case at trial will walk away with nothing, and at the same time they're likely to owe legal fees and some amount of costs, even if their attorney has agreed to take the case on a contingency basis.
On the flip side, defendants who refuse to meet a plaintiff’s demand risk having a jury awarding damages higher than what was demanded in the first place. Regardless, predicting how a jury will ultimately decide a case is impossible, even with highly qualified and expert counsel.
Taking a case to trial costs a lot of money. Attorney’s fees and court costs will increase significantly during trial, often making a trial prohibitively expensive for one or both sides.
Especially in personal injury cases, plaintiffs may decide to forego trial simply because they need money quickly. Even a low settlement offer made before trial may be more desirable than a larger jury award for a plaintiff who can’t afford to wait to receive compensation. A plaintiff may have medical bills, lost wages, or other costs associated with the case, and thus may be willing to accept a more modest offer if it means quicker payment.
When parties agree to a settlement, they enter into a binding contract which guarantees payment and closure of the case, including a release of any right to pursue the matter in the future. A successful party at trial, however, may have to overcome lengthy appeals before the case is officially closed or before a damages award is paid. So even if you win your day in court, it’s likely that you’ll be going back for some time.
Sometimes there’s no way to resolve an injury case fairly without getting the court involved. In cases where the liability of the defendant is fairly clear, damages are well documented, there is a history of relevant jury verdicts, but the defendant just won’t offer a reasonable settlement, a trial might be a good bet. An experienced attorney is very valuable when it comes to weighing all the considerations to help their client make an informed decision.