The vast majority of personal injury (PI) cases settle before trial. There are lots of reasons why. Among them are the many advantages settlement offers for both you, the injured person (the plaintiff), and the party who caused your injuries (the defendant). In addition, settlement lets both sides avoid the many, unpredictable risks associated with trial.
Let's look at when and how a PI lawyer is likely to negotiate a settlement on your behalf.
Ideally, settlement talks begin once you're finished treating for your injuries, and well before a PI lawsuit is filed in court. A good personal injury lawyer will look to settle your personal injury case at the best opportunity—not necessarily the earliest opportunity.
If possible, your lawyer wants to hold off on serious settlement talks until you're done getting medical treatment for your injuries. Only at that point, sometimes called "maximum medical improvement" or MMI, can you get an accurate picture of:
That said, circumstances can dictate that you settle before reaching MMI. Perhaps your financial circumstances are dire, as often happens when you're badly hurt and unable to work. If you need settlement funds to make ends meet or to keep your home out of foreclosure, waiting for MMI might not be realistic.
If your injuries are particularly serious and you know you'll need future medical care, your settlement can include amounts for future medical costs. Your lawyer will need to work with medical and financial experts to calculate the amounts of these expenses.
Given their years of experience, seasoned PI lawyers know that one key to getting the best settlement is settling at the best time. In some cases, that might be early on. But in most cases, you'll end up dollars ahead by waiting. Why is this so?
When settlement negotiations begin, as they usually do, before a lawsuit is filed, chances are your lawyer will be dealing with an insurance adjuster. Ultimately, this person's job is to pay you as little money as possible, and to make you wait for it as long as possible so that you're desperate for cash.
When an experienced lawyer runs into an adjuster who seems anxious to settle, it arouses suspicions. There aren't many reasons why an insurance company will be eager to write you a check. But here's one that can work to your advantage: The adjuster knows they have big problems with the case or with their insured, and they want the case to go away before you find out what those problems are.
The longer you can wait, the more time your lawyer will have to dig. And dig. And dig some more. There's nothing a good PI lawyer likes to do more than dig for facts when they smell a nervous adjuster. The more your lawyer finds out about the problems the adjuster wants to keep hidden, the more the adjuster will be willing to pay to settle.
Say yours is a car wreck case. Your lawyer's investigator learns that the other driver had been drinking and has a history of driving while impaired. Or maybe the other driver had their license suspended for traffic infractions. You'd want to settle that case too, if you were the insurance adjuster. Your lawyer will let the adjuster know that you're happy to settle, but the price just went up.
As mentioned above, early on, negotiations will be between your lawyer and the adjuster. Once you file a lawsuit, an insurance company lawyer will take over the case. Because the insurance company is paying the lawyer's bill and ultimately will write the settlement check, the company will still call the settlement shots. But the insurer will listen and give considerable weight to its lawyer's advice.
While your lawyer will negotiate on your behalf, you always retain final settlement authority. Your lawyer is duty-bound to bring you every offer the insurance company makes—even an insulting, lowball offer. Your lawyer will also give you their best advice as to whether you should accept or reject an offer. In the end, though, that decision is up to you.
One of the key factors in settling a case is timing. If you're not able to settle your case before filing a lawsuit, don't despair. An experienced PI lawyer knows that sometimes, filing suit is the best way—perhaps the only way—to make the insurance company pay you fair value for your case.
There are several points during the life of a lawsuit where settlements become more common, including:
Most of the time during a lawsuit is spent in a process called "discovery." As the name suggests, discovery is each party's chance to learn about the facts, claims, defenses, and evidence the other parties plan to rely on at trial. There are several different types of discovery, but two of the most important are interrogatories and depositions.
If there's a smoking gun lurking out there that's likely to tip the case one way or another, chances are it'll surface during discovery. What the parties learn (or don't learn) during discovery can play a significant role in valuing and settling a case. If the facts are on your side, the value of your case likely goes up. If not, the value goes down. Either way, the chances of settlement probably increase.
Settlements are common after the "summary judgment" stage of the case is done. Summary judgment means that all or part of the case is disposed of summarily, without a trial. When you ask the court to grant you summary judgment, you're asking the court to rule that there isn't enough evidence to prove your opponent's claims or defenses.
Because summary judgment relies heavily on the evidence (or lack of evidence) in the case, this stage of the lawsuit follows shortly after discovery is finished, but before the case goes to trial. The defendant almost always asks the court to grant summary judgment, either for the entire case or for certain claims or key issues. A plaintiff can ask for summary judgment too but is less likely to do so than the defendant.
If the defendant asks the court to grant summary judgment on all your claims and the court grants the motion, the defendant wins, you lose, and the case is over, barring an appeal. If the court grants part of the defendant's motion, chances are some of your claims are lost. If the court denies the entire motion, a trial is usually the next step in the case.
Summary judgment is often the defendant's last chance to avoid a trial. When the court denies the defendant's request for summary judgment, the defendant might become eager to settle. By contrast, if the court guts your case by granting some or most of the defendant's summary judgment request, you'll be the one who's anxious to settle.
A "motion in limine" is just a fancy way of asking the court to exclude some of your opponent's evidence at trial. Often, there are questions about whether evidence is admissible (can be used) at trial. A motion in limine brings questions about admissibility to the judge for a ruling. The judge must decide whether the evidence can be used and if so, how.
An entire case might rest on one or a few crucial items of evidence. Perhaps it's an eyewitness's testimony that proves your case. Or maybe it's a surveillance video that shows the defendant drinking at a bar shortly before your car wreck. As with summary judgment motions, the losing side on motions in limine might be more motivated to settle the case.
For what are likely obvious reasons, many cases settle when the trial is imminent, ongoing, or has just finished. It's then that the risks of a trial are most keenly feared or felt.
Once discovery and pretrial motions are done, experienced lawyers know what the evidence at trial will be. Based on that evidence, they're able to predict with more certainty how a case is likely to turn out. The side on the short end of the stick will be much more eager to settle.
Many cases settle during the trial. If it looks like things are a tossup, both sides might prefer a settlement to avoid the risk of a disastrous verdict. Quite often, the side with the weaker case wants to avoid a total loss. At that point, however, they likely don't have much negotiating leverage aside from the threat of an appeal.
Once the trial is finished, there often isn't much room left to bargain. A winning plaintiff might agree to settle to avoid the risks and delays associated with post-trial motions and appeal. It might be worth letting the insurance company save a bit of money to put the cash in the bank right away.
After the parties agree to settle, they'll confirm the settlement terms and prepare the necessary settlement documents. Some settlements—those involving children and people who are legally incompetent to manage their own affairs—will need court approval.
The terms included in the settlement documents will vary from case to case, but likely will include:
Once the settlement documents have been signed, the defendant's insurance company writes a check to the plaintiff's attorney, and the case is complete.
A good personal injury lawyer brings a wealth of knowledge and experience to the table. This is someone who has handled, negotiated, and settled dozens—maybe hundreds or even thousands—of PI cases much like yours. The insurance company will be represented by teams of insurance adjusters and lawyers. Having a lawyer on your side makes it a fair fight.
Here's how to find a PI lawyer who's right for you and your personal injury case.