Consider this scenario:
You were rear-ended by a car that was speeding on the interstate. Your car was totaled, and you sustained back and neck injuries that have cost you a small fortune in medical bills and caused you to miss work. The other driver’s insurance company has offered a settlement. It is quite a bit of money, but you don’t know how long your injuries will persist. Will it be enough to cover future medical treatment and days off of work if you don’t heal as quickly as you had hoped? Should you accept the settlement and walk away with cash in hand? Or press on to a trial and hope for a bigger payout there?
(Pixabay / OpenRoadPR)
These difficult decisions affect many people involved in personal injury cases, and the answer is not always clear cut. The better informed you are, however, the better equipped you will be to make the best decision for your particular case.
In this article, we’ll help you understand more about the pros and cons of both options—settlements and trials—to help you secure the best outcome.
Defining the terms: settlement vs. trial
A settlement occurs when the person you are suing (defendant) agrees to pay you (the plaintiff) a certain amount of money to drop the case. This offer is often made through their insurance adjuster or attorney.
If you decide to proceed to a court trial, a judge or jury will hear both sides of the case and decide who is at fault and what damages (if any) should be awarded.
Pros of settling out of court:
Most personal injury cases end in settlement, but before you decide to settle, it’s important to consider what you gain and lose by choosing this type of resolution. Here’s a closer look:
Certainty of outcome. When you decide to settle, you can know with certainty what amount of money you will receive. When you go to trial, however, you are taking a gamble. You may win more than you were offered for the settlement, but you may also be awarded less—or even nothing.
Faster resolution. Personal injury cases can take a long time to resolve. It takes a while to gather the information needed to establish liability, including gathering police reports, the testimony of witnesses, medical records, and more. There is also the issue of maximum medical improvement, which means that you have healed as much as you are going to from your injuries or reached a stable point where your doctor can reasonably discern your long-term medical needs. Until you have reached this point, it is risky to try to quantify your damages.
Going to trial adds additional layers to this already time-consuming process. There is a great deal of preparation that goes into a trial, including the deposition of witnesses and experts in the pre-trial discovery process, preparation for examination and cross-examination, etc. Trials do not typically start until more than a year after the initial lawsuit is filed. And even though the trial itself may last just a few days, the door will be open for appeals processes that could take years. Even relatively simple personal injury lawsuits often take at least three to four years from the time of filing to the last appeal.
Faster payout. With a faster resolution comes a faster path to compensation. If you do decide to settle, it is common to receive a payout within a few weeks of settlement. This can be helpful knowing that you are likely shouldering many costs, including property damages (such as a wrecked car), medical bills, and lost wages.
Less stressful. When you decide to go to court, you open yourself up to a public trial. You may be examined and cross-examined about the details of your accident, which may be painful, will be dredged up over and over again. The opposing side could question your character and your past actions in an attempt to show that you share in the blame for the accident or that you do not deserve as much compensation as you are asking for. And, as mentioned above, this could all drag on for years. If your physical or mental well-being is suffering in the wake of your accident, it’s important to consider whether or not you are up for the prolonged stress of a trial.
Reduced attorney fees. Personal injury law can be complicated, but an experienced injury lawyer can help you navigate the law and use it to your advantage. They can also stand up to your opponent’s insurance company so that they don’t use intimidation tactics and try to get you to settle for less than you deserve.
A good attorney can help you get maximum compensation through a settlement or a trial, but keep in mind that if you do proceed to a trial, your attorney will be required to do a lot more work on your behalf. Thus, you can expect to pay your attorney more, whether through hourly compensation or through greater contingency fees (fees that are only collected if you win your case).
Private. Settlements are usually private so that you will not have the details of your life opened up in front of a judge and jury.
Pros of going to trial:
There are, of course, a number of advantages to going to trial as well. Although it can be a longer and more costly route to resolution, it may be the best option in some cases. Here are some advantages.
Potentially larger award. Though there is no guarantee that you will get a greater financial award from a case that is settled through a trial, it is always a possibility. It is wise to enlist the help of an experienced personal injury attorney from the start of the case. They can help you press for maximum compensation through a settlement. If you can’t get an adequate settlement offer, your attorney can help you know what your chances are of winning in the courtroom.
Liability is established. In a settlement, the defendant can agree to pay monetary damages without admitting guilt. If it is important to you to clearly establish that the other party was at fault in the personal injury case, then it may be worthwhile for you to go to court.
Public. While some people want to work their case out privately with as little public scrutiny or fanfare as possible, others want their case to play out in a public forum. This allows them to share their personal story or make a public example of the defendant so that they will be more likely to change their behavior and avoid causing similar injuries in the future. For example, if you were infected by E. coli from a fast food meal due to the restaurant chain’s sloppy food handling practices, you may want to go to trial to expose their policies and give them added incentive to adjust them.
According to the U.S. Department of Justice, only about 4 to 5 percent of personal injury cases go to trial. Furthermore, a 2008 study published in the Journal of Empirical Legal Studies showed that over 60 percent of plaintiffs who went to trial ended up being paid less than they would have if they had accepted a settlement offer.
Where personal injury lawsuits are concerned, settlement is often the best option; however, in our firm’s 50 years of experience in Las Vegas, we have seen cases succeed both in and out of court. We understand that no two cases are alike and listen with respect and care to the details of our clients’ cases. We negotiate fiercely with the opposing party and apply our extensive experience to help clients know whether a settlement or trial would be in their best interest.