To Settle or Not to Settle a Personal Injury Case

Posted Friday, October 21, 2016 by Chris Thayer

Most cases end in settlement rather than go to trial. There are many reasons to settle a personal injury case, even if the settlement number is less than the potential of your reward at trial. The purpose of a settlement, however, is an exchange. It is a guarantee of compensation and in return for you giving up your right to sue (or continue your suit) against that defendant for liability and your injuries.

Process from Injury to Trial

After your accident and you seek treatment for your injuries, you should obtain any police, accident or incident report. Bring the report with you when you meet your personal injury attorney so he or she can provide you with a clear assessment of your case.

Filing a Complaint

Once it becomes clear that you have a case, your personal injury attorney will file a complaint in civil court. The purpose of a complaint is to detail the actions taken by the person, or persons and/or entities, who injured you (the “defendant”), and the injuries sustained by you, (the “plaintiff”). It will also include a line or two about the amount of damages sought. This puts the other party (and his or her insurance company) on notice of the suit.

Answer

Once the complaint is filed, the defendant is expected to file an Answer to the claims. This must be done within a specified amount of time.

Discovery

“Discovery” is a word that describes the investigative stage in the process. During the discovery process, the lawyers for both sides gather information from the other side. This will include things like police reports, accident or incident reports, and eyewitness statements, if any. It will also include your medical records from the hospital, your treating physician, your physical therapist, and/or chiropractor. You will be “deposed.” This means you will meet with lawyers for the defendant and be subject to questioning. Your lawyer will be with you. Prior to the deposition, your lawyer will spend considerable time meeting with you in advance of the deposition to make sure you are well prepared, and familiar with what the deposition will feel like. Similarly, the person who injured you will be deposed by your lawyer. You have the right to be present for this deposition as well. The most important rule about being deposed is, “Don’t guess.” If you don’t recall the answer to a question, say you don’t remember.

Case Assessment

Once your lawyer and the lawyer for the other side have gathered all the information they feel is necessary to re-evaluate the case, they will engage in a case assessment. Your lawyer will evaluate any defenses asserted by the respondent. The defense attorney may argue you contributed to your own injuries, by your own negligence. Alternatively, the defense attorney may argue the defendant was not responsible for the accident, your injuries were pre-existing and/or the accident did not cause your injuries. There are any number of different defenses that may be asserted. Your lawyer will carefully review the response, keeping in mind case law and the statutes of the state of Washington. Your lawyer will also evaluate the claims for credibility and truthfulness. Finally, your lawyer will be looking for inconsistencies (or consistencies) in evaluating the strength or weakness of the other side’s response.

Negotiations

After the close of discovery, it is not uncommon for the lawyers from each side to engage in negotiations to determine whether a settlement can be entered into. This will typically involve several back and forth conversations, as both sides seek to agree upon a dollar amount that is satisfactory to both sides.

When Do Settlement Negotiations Occur?

Many people think that when a case is filed, it is likely to go to trial. This is most often not the case. Instead, most civil cases settle somewhere along the line between the filing of the suit and up to and even during the trial. In addition to the negotiations that may take place once discovery is completed, there are more formal procedures in place designed to encourage settlement.

Jury Trial Demand

Once the Answer has been filed, either party can demand a trial. The trial can be either to a jury or to a judge, which is called a court trial.

Settlement Conference

Even though your lawyer has filed a demand for a jury or court trial, the court will set a date for a settlement conference. This typically happens about 90 days before the trial setting. The settlement conference is specifically designed for the parties to come together to engage in discussions about settlement. You, as the injured party, as well as “the person with authority to consent to settlement” for the other side, will be required to attend this hearing.

Confirmation Hearing

Even if your lawyer and the lawyer from the other side have been unsuccessful in any attempt to resolve the matter, a confirmation hearing will be held one week before the scheduled jury trial. The purpose of this is twofold: first, to confirm both sides are ready to proceed to jury trial and second, to determine once again if an alternate resolution can be arrived at.

Couldn’t I Get More Money From Trial Than Settling?

There are many reasons to consider when deciding to settle a personal injury case prior to trial:

• No guarantee of a win: While it is true that it is possible that you could be awarded more money by a jury than you are being offered to settle, the opposite is also true. It is possible the jury would award you less money than you are being offered to settle or the jury may find in favor of the defendant.
• Time: Preparing for and the actual trial take time. Not only will you be meeting with your attorney in preparation for your testimony, including going over your testimony and doing a mock cross-examination, at home, you will also be reviewing documents to refresh your memory of the accident, injuries, and treatments you had. You will also be expected to attend every day of the trial.
• Stress: Trials are stressful. Not only do you need to be prepared to testify, but you will be subject to cross-examination and the opposing attorney will be asking questions in an almost hostile or accusatory fashion. The attorney will be looking for inconsistencies in your prior testimony and will be emphasizing any weakness in your case.
• Cost: Trials are also costly. Although it is true you do not have to pay your attorneys unless you win, and your attorneys receive a third of your gross award, if you do not win, you still need to pay any expenses. This includes expert witness reports and testimony, court fees, etc. If you do win, your net award is the gross award less attorneys fees and any expenses.
• Appeal: When a party loses at trial, that party has the right to appeal the decision. This can lead to additional months – even years, of waiting for case resolution if the party appeals. Settling the case guarantees there will be no appeal. Instead, your case will be considered resolved and closed.