At The O’Brien Firm, over 98% of our cases settle before trial. Many of our multimillion dollar cases have settled without a client ever appearing in a courtroom. When people think about trials, they often view the opening statements, direct and cross examination, and closing arguments, as “litigation.” This is part of litigation, however, this does not provide a complete picture of what constitutes litigation in a given case. Below is a simplified version of how attorneys handle personal injury cases.
How Attorneys Evaluate Cases
When someone is injured in a crash, the first step is talking with an attorney experienced in personal injury cases. When you meet with an attorney, they ask questions designed to determine how you were injured, when you were injured, why you were injured, what consequences you dealt with or continue to face, and who was responsible. Next, your attorney will seek to gather information which may further inform them of the facts and circumstances of your case.
When an attorney determines there is a legal cause of action, they can file a complaint against the wrongdoer. That party then answers the complaint. Next, the parties engage in something called “discovery.” In its simplest sense, discovery is the opportunity for the attorneys to obtain documentation in support of their claim. This can include medical records, police reports, videos which may have recorded the accident, statements from witnesses, and other information that either supports the injured party’s claim, or detracts from the strength of their claim.
Once discovery is complete, the attorneys evaluate the strengths and weaknesses of their respective cases. Then the negotiation begins. Attorneys consider past medical expenses, and past lost income, which are easy to calculate. They also consider future medical expenses, which are not always as easy to calculate. Depending on the nature of your injuries, attorneys consider other costs, such as loss of future income, and pain and suffering, both past and future. In evaluating what a case might be worth, of course, attorneys must honestly evaluate any possible defenses asserted by the other side.
Once an attorney feels they have adequate information and have evaluated the strengths and weaknesses of the case, they will engage the other side in negotiations. It is not uncommon for the attorneys to have several discussions over days or weeks, seeking to come up with a dollar amount that is satisfactory to both sides.
In New York, settlement conferences are mandatory in many personal injury cases. During settlement conferences, the court requires the appearance of attorneys fully familiar with the action. These attorneys must also have authorization to resolve the case. This results in meaningful discussions of the strengths and weaknesses of each side’s case, which often results in resolution.
There are any number of different reasons parties settle personal injury cases. In some cases, due to the facts at hand, the insurance company makes an offer at the limits of the policy. In other words, there may be no advantage to taking the case to trial because no additional recovery can occur from the insurance company.
Even in cases where a larger award is possible at trial, the opposite is also true. Whenever you leave the question of the amount of the award to the jury, you run the risk the jury will award less than the amount offered. The jury even has the option of coming back with no award at all.
Another reason cases often settle is the value of time. Trial preparation and trials take time. The parties attend the entire trial. Additionally, they must work with their lawyer to prepare. The parties testify and opposing counsel cross-examines the witness. For the inexperienced, this can be quite stressful. On balance, settling may be the better choice considering the following:
- The amount offered;
- The added time commitment required for trial prep and trial;
- The potential for a slightly higher award; and
- The risk of no award.
Finally, settlements are agreements between the parties. Jury awards, however, are not agreements. Either side can file an appeal. Appeals can challenge the decision of the jury. Alternatively, appeals can challenge the rulings of the judge during or pre-trial. Appeals can drag on for months or years. Settling the case provides finality and certainty.
Injured? Contact The O’Brien Firm
If you have been injured in an accident, you may be entitled to compensation for your injuries. At The O’Brien Firm, we have a proven track record of successful litigation from pre-suit discovery through trial. Contact us to discuss your case.