When it comes to personal injury litigation, the question is inevitable. Is it better to settle or go to trial? Of course, there is no universal answer because the decision hinges on several factors. The facts of the case and a plaintiff’s personal circumstances are generally among the most important.
If you were hurt in an accident where someone else was at fault, an experienced personal injury attorney can help you decide what’s best for you. In the meantime, here are some things to consider.
Understanding the difference between settlement and trial
Since they yield similar results, it is important to understand the difference between settling and going to trial.
Reaching a settlement
Settling a legal dispute, or reaching a settlement, is a process that involves a series of discussions between concerned parties or their representatives. The end goal is to reach consensus on a solution without going to trial.
Here’s how the settlement process generally works in a personal injury case. Assuming you are the plaintiff, your lawyer will get your account of what happened and start building your case. Once he or she has enough information, your attorney will send a demand letter and supporting documents to the defendant’s lawyer.
This is a basic letter that details what happened, the extent of your injuries, and your financial and non-financial losses. It will also specify the compensation amount you are seeking. The supporting material serves as proof of your claim.
Submission of the demand letter and supporting documents usually opens negotiations between your attorney and the defendant’s attorney and/or insurance company. In most cases, offers and counter-offers are exchanged by phone or email.
If these exchanges lead to a promising offer, your attorney may request a personal meeting to finalize the deal. All parties must sign the final settlement agreement and a judge must approve it for it to be enforceable in court.
If you received consumer legal funding, sometimes referred to as a pre-settlement funding or lawsuit advance, the funded amount and fees (if any) will be deducted from your settlement once your attorney receives the settlement proceeds.
Going to trial
But what happens if your attorney doesn’t reach an acceptable agreement with the defendant’s attorney and/or insurance company? Well, if he or she thinks you have a strong case, your personal injury lawyer will take it to trial. This means a judge or jury will ultimately determine whether the defendant must compensate you for your financial and non-financial losses (if any).
Here’s what usually happens during a jury trial:
- A jury is selected
- Attorneys for the plaintiff and defendant make opening statements
- Lawyers for each side call/cross-examine witnesses and present evidence
- Jurors receive instructions prior to deliberation
- The jury deliberates and renders a verdict
During a bench trial, a judge hears the facts of the case and renders a decision instead of a jury. Other than that, the process is fairly similar.
Depending on the complexity of the case, number of witnesses, the extent of the cross-examination and so on, a personal injury trial can take hours, days or weeks. If the judge or jury finds the defendant is responsible for your injuries in the end, an order is issued accordingly.
In some cases, plaintiffs will seek pre-settlement funding to provide financial relief while their personal injury case is pending. If you received this type of funding, which depending on state law is often provided via a purchase agreement and sometimes provides as a loan, the amount funded and fees will be deducted from your judgment.
Why pursue a settlement?
Of course, settlement and trials both have pros and cons. Let’s begin with the advantages of trying to reach a settlement.
In general, the settlement process is more affordable, less stressful and affords more privacy than a trial. As a plaintiff in a personal injury case, you probably have a contingency fee agreement with your lawyer. The details of these agreements vary, but most personal injury lawyers agree to roughly one-third (33 percent) of a pre-trial settlement and slightly more (40 percent) of any settlement amount secured once the trial is underway.
As to the second point, a trial is extremely stressful, no matter how long it takes. Just because you are the injured party does not mean you are exempt from testifying. And it certainly doesn’t mean the opposing attorney will be gentle. Even if the defendant’s lawyer doesn’t “grill” you, you will still be forced to relive the accident in which you were hurt.
On the other hand, your lawyer can negotiate a settlement for you. You aren’t compelled to attend settlement talks or see the defendant. All you have to do is sign the final settlement document.
Finally, trials are usually held in open court. The proceedings are documented, and – barring an order stipulating otherwise – they are a matter of public record. In fact, all materials, including pre-trial filings, are open to public scrutiny unless a judge grants a motion to have them sealed.
Conversely, you and the other parties to a settlement can choose what to make public and what to keep to yourselves. You do not even have to release any information about a settlement agreement.
Why go to trial?
So is there any advantage to going to trial? Yes. In fact there are a couple.
First, you may end up receiving a much more significant award than you would get through a settlement. This is because a judge or jury is more likely to award compensation for economic and non-economic damages. Insurance companies are notoriously reluctant to pay non-economic damages such as loss of enjoyment of life because they are not easily quantified.
At trial, a judge or jury may award punitive damages, compensatory damages or both. An award of punitive damages is only made in cases where the defendant’s negligence was especially egregious. Compensatory damages are sought and awarded far more often. Even an award of the latter ensures the defendant is held accountable and this often reassures the plaintiff that the law has been upheld. This may be extremely important to the plaintiff and his or her family – especially if the defendant is not facing any criminal charges in connection with the incident.
On the other hand, there is no guarantee that the trial will go the plaintiff’s way. The judge may toss important evidence, or a jury may not believe certain witnesses. If your lawyer can’t prove that the defendant was negligent, and that his or her negligence caused the accident in which you were hurt, you’ll lose the case.
Even if you prevail, there’s no guarantee that the judge or jury will award the full amount or even a portion of the compensation you are seeking. Conversely, a settlement delivers compensation in an amount your attorney negotiated.
Finally, it can take months or even years to win a personal injury case at trial. For plaintiffs who are unable to work due to their injuries, this may cause serious financial hardship.
The bottom line
If you have questions or concerns about a personal injury claim, your best bet is to contact a qualified attorney. He or she can easily determine whether you have a viable case and review you legal options – including settlement or going to trial.
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