Most personal injury lawsuits are settled out of court. There are many reasons for this. Settling your lawsuit out of court can provide you with several advantages over going through a trial. You always have the option of settling your lawsuit out of court, if the opportunity presents itself in a way that you are being fairly compensated for your injuries and damages.
Below is more information about how a personal injury lawsuit can be settled out of court, and why they often are.
Trials Are Expensive and Long
Usually, as the plaintiff, you will have a contingency fee agreement with your personal injury attorney. In most cases, you will pay the attorney 33% of a pre-trial settlement and 40% of any amount that you get after the trial starts.
The defendant usually hires an attorney and pays a rate per hour, so a long trial will be an expensive endeavor for the defendant. They will usually need to pay much more to go through a trial compared to settling. Paying more to lawyers is not the only cost of going to trial. A trial also will have the costs of expert witnesses, court costs, lost time from work and travel costs.
The earlier the case settles, the less pricey the litigation process is for both sides. This is especially true for the defendant paying an hourly rate. The discovery process before the trial can involve depositions that can include the deposing of expert witnesses that cost a lot of money. Some attorneys for the plaintiff will pay pre-litigation expenses out of pocket but not all will. If the attorney does pay them up front, this will be taken out of your settlement or award. If the defendant’s negligence and liability for the accident are clear, both sides will benefit from settling before the trial, or as early as possible if the trial begins.
If the attorney for the defendant is paid by an auto insurance company, some of these considerations shift. The insurance company is legally obligated to settle the case in good faith. They are not allowed to settle early just to save on attorney fees. But if you decide to accept or propose a settlement that is reasonable, the defendant may not refuse it only because they are not paying the legal costs.
The Stress of Trials
Some personal injury trials may not last longer than a few days, but the process is stressful for all parties. Both sides of the lawsuit can be cross examined on the witness stand and have their character publicly questioned. Also, the weeks leading up to the trial can involve a lot of work on both sides. It is not just the attorneys that have to put in long hours; you may need to spend a lot of time preparing to testify. If you agree to a settlement, the defendant will pay you a certain amount of damages, and the case is concluded. This can occur after the trial actually begins; remember, a case can be settled at any time before or during a trial.
Trials Are Unpredictable
A jury could award you much more in damages than you get in a settlement, but how do you know for sure? You don’t. Trials are nearly always unpredictable. It is possible that evidence critical for your side is excluded by the judge. Or, eyewitness accounts may be deemed unreliable. There could be inconsistencies that come out in your testimony compared to what you said after the accident.
But even more unpredictable than showing the defendant is liable for your injuries, is what the jury will do. What you receive in a trial is entirely up to the discretion of the jury. Making a prediction of how much you will receive from a jury is just a guess and nothing more. It is possible that the jury will decide you get nothing at all.
The advantage of an out of court settlement is that both sides have negotiated what the defendant will pay you. It is iron clad and guaranteed once both sides have signed the legal agreement. This is very important to many plaintiffs who may be in desperate need of money to cover their medical expenses and to make up for the fact that they cannot work.
Trials and Appeals Take Months or Years
It is common for a trial to not start for months or even a year after the claim is first filed. Even if you win at trial, the other side can make it take longer by filing an appeal. Even if the case is relatively simple, it is not unusual for the entire process to take several years if more than one appeal is involved. With a settlement, you will know exactly what you get.
Trials Are Not Private
Most trials are public matters, unless the judge orders records to be sealed, which is very rare. All witness testimony and evidence will be available on the public record for anyone to read. Many plaintiffs and defendants do not want all of this to be in the public domain. A settlement in a personal injury case can remain entirely private if both parties want it. The compensation that you receive in the settlement can also be kept private.
Defendant Does Not Have to Admit Liability
If the defendant loses in the trial, he has been found liable for your injuries. But if you decide to settle the case, the defendant does not need to admit he is liable at all. If you feel morally that the defendant should admit liability, this may not be the ideal outcome. But it is a major benefit to the defendant who does not want the public record to show they were negligent in a personal injury case.
Settlements Are Final
While the settlement process is often more appealing to both sides in a personal injury case, it is important to remember that all settlements are final. Once the plaintiff and defendant agree to a settlement and the legal documents are signed and filed, the case is over. If you were to have a change of heart a minute after the offer is accepted by both sides, there is nothing you can do. Just as with any other legal contract, there is almost no chance of getting a court to reverse the settlement. So, it is important for you as the plaintiff to carefully consider the settlement terms before you accept it.