Is a Lawsuit and Trial Necessary in a Slip & Fall Claim?

If you've suffered and slip and fall injury and have brought a premises liability claim, you probably want to avoid a lengthy court case. If settlement doesn't work right away, it will still be an option after filing a lawsuit.

Most slip and fall lawsuits, and most personal injury lawsuits, get settled. Even when settlement talks fail initially, the realities of a costly and time consuming trial often act as a catalyst to get settlement negotiations going.

Last-Minute Settlement Negotiations

Some injury cases are settled long before trial, others are settled days before trial, some are settled the morning of trial, and some get settled during the trial. Some even get settled after the trial, while an appeal is pending. The timing of a slip and fall settlement can be due to several major reasons:

  • the parties are waiting to see how the evidence turns out
  • negotiation tactics
  • the defense attorney gets paid by the hour

Although the lawyers do extensive pretrial investigation ("discovery"), some evidence does not appear until trial or shortly before trial. For example, it may be unclear exactly what the witnesses will testify to. Often it is the plaintiff's doctor whose testimony is unclear.

Although the lawyers have your doctor’s medical records, they may be uncertain as to whether your doctor will fully support your injury claims in his/her testimony at trial. In that case, the defense attorney may be unwilling to offer too much money to settle the case until he/she hears the doctor testify. Doctors do not generally testify at trial; the lawyers usually take the doctor’s deposition shortly before trial.

Another reason for delay is negotiation tactics. The lawyers are testing each other and their clients to see who will crack first. If the defense attorney is willing to pay $100,000 to settle the slip and fall case, but thinks that the plaintiff’s lawyer will settle for $90,000, the defense attorney will hold out as long as possible to see if the plaintiff’s lawyer will give up and take the lesser amount.

Another negotiation tactic that delays settlement is that many lawyers are unwilling to put their best offers on the table until they are sure that their opponent will accept the offer. They don’t want to make their best settlement offer unless they know that it will be accepted.

A third reason for delay is, very simply, that defense attorneys get paid by the hour. The more hours they work, the more they get paid. Thus, the longer the case drags on, the more they earn.

Preparing For Trial

Your lawyer will usually meet with you a number of times during the week or two before trial to prepare your testimony. Before or during that time, you will want to review your answers to interrogatories, your deposition testimony, and any other statements that you made in the case so that you and your lawyer can be sure that your trial testimony will be as consistent as it can be with your prior testimony and statements. If you have inconsistencies between your current and prior positions, then you and your lawyer will have to come up with a way to explain and harmonize the two positions so that they make sense to the jury.

Your lawyer will usually practice your testimony with you, asking you the exact questions that he/she will ask you at trial. This is called the direct examination. In direct examination, there should be no surprises as to the questions that your lawyer will ask you and your answers to these questions. It should be almost like a script, except that you and your lawyer want the jury to think that it is a casual, spontaneous conversation.

Your lawyer will also practice cross examination with you. While your lawyer can never know exactly what questions the defense attorney will ask you at trial, lawyers usually have a pretty good general idea of the types of questions that will be asked during cross examination.

If you will be discussing exhibits or making diagrams at trial, your lawyer will usually have you practice talking about those exhibits or making the diagrams. You never want to do something for the first time at trial, if you can possibly help it.

At The Trial

The first thing that happens at a trial is that the jury is selected. That can take as little as an hour or two to a day or more, depending on your state’s procedures. Then the lawyers give their opening statements. After that, the witnesses begin their testimony. You, as the plaintiff, are usually the first witness. After your testimony is over, you will either sit with your lawyer at the lawyer’s table, or you will sit in the first row of the stands, depending on your court’s procedure. The lawyers will then call all the rest of the witnesses. Some witnesses, like the medical providers, generally do not appear live; their depositions are usually videotaped, and the videotape is played to the jury.

After all of the witnesses have testified, the lawyers will give their closing arguments. The judge will then instruct the jury on the law that it must apply in the case, and the jury will go into the jury deliberation room to decide the case. Jury deliberations can take anywhere from half an hour to a day or more. Finally, the jury will return to the courtroom and deliver its verdict -- either finding the defendant liable for your slip and fall accident and awarding you a set amount of compensation, or finding for the defendant, meaning you won't receive anything. At that point, the trial is over, but a number of issues may be eligible for appeal by either side.

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