Depending on the source you read, you will find varied statistics about the settlement of personal injury claims. The vast majority of claims emerge from traffic accidents, but slip and fall accidents, medical malpractice, and product defects also make up claims.
Most claimants settle their cases long before going to court. However, sometimes settlement is not a viable option.
Below we cover the major advantages and disadvantages of settlement vs. litigation, followed by the scenarios in which your attorney might advise that you should bring your personal injury claim to court.
Advantages of Settling Your Personal Injury Claim
Both sides of a personal injury claim typically prefer to settle a case instead of taking it to trial. The advantages that make settlement a popular option include:
Lower Cost
Arguably the biggest advantage of settling your personal injury claim is cost savings. Those who have suffered injuries due to the negligence of another person, business, or entity typically enter a contingency fee agreement with their attorney.
This agreement gives the law firm permission to deduct a percentage of a settlement or jury award to cover attorney fees if you prevail in your claim. The percentage amount you must pay for attorney fees in some fee arrangements may increase if your case goes to trial because trial preparation requires more work for your lawyer.
Increased attorney fees are not the only costs of litigation. Lawyers must build the strongest case possible, which typically means consulting with experts such as forensic scientists, life care planners, and accident reconstruction specialists. These expert witnesses charge fees for their time.
Your lawyer will also have to depose relevant parties during the pre-trial discovery process. Additionally, you will have to pay administrative court costs and transportation expenses. These costs quickly add up, sometimes making claimants wish they accepted a settlement offer.
Settling a personal injury case reduces the costs of a claim for both parties. In fact, the most savings come when parties settle long before trial so that lawyers can avoid some of the expenses listed above. However, cost savings don’t always matter when liability is murky, and lawyers do not yet know the full scope of their clients’ injuries.
Predictability
When your personal injury claim goes to trial, you leave the financial outcome of your case to the court. If you have a viable claim and the jury rules in your favor, you have a good chance of receiving the full value of your claim. This is typically much more than the amount you agree to in a settlement, some of which will be eaten up by the costs of litigation.
Although you could receive greater compensation for damages by taking your case to court, you could also receive nothing. Unpaid transportation costs related to meeting with your lawyer and going to court can leave you in the hole if a jury rules in favor of the defendant.
Whether in a business deal, a personal injury case, or a divorce, experts often tout that the best deal or settlement is when both parties walk away unhappy. Reaching an agreeable settlement requires compromise on both sides. It’s doubtful you will receive compensation for the full value of your claim. However, the goal is to reach an agreement that provides fair compensation. You have control over the outcome of your case when you settle, which can be a great advantage to the unpredictability of a court trial.
Permanent Nature
Even if a jury rules in your favor, your court case might drag on, the other side may appeal, forcing you to wait longer for the compensation you deserve for your injuries.
This uncertainty can unsettle many plaintiffs. Signing a settlement agreement also means waiving your right to seek further compensation. Although this benefits the defendant because you cannot sue them for additional money after accepting a settlement, it also benefits you.
Settlement agreements are also permanent for defendants. They cannot renege on them, and plaintiffs don’t have to deal with costly and lengthy appeals. The appeals process is often longer than the original trial. If the insurance company or other defendant isn’t happy with the outcome of the appeal, they might appeal a second time, eventually taking a case all the way to the state’s supreme court.
Reduced Stress
The aftermath of accident injuries or other injuries resulting from negligence comes with a lot of stress for victims and their families. First, victims must face the uncertainty of the recovery process, wondering if they will make a full recovery or suffer permanent injuries. Second, severe injuries place undue financial stress on many families, especially if the injured person brought in some or all of the household’s income.
Settlements present a less stressful option when victims of negligence are already coping with physical, emotional, and financial stress after an injury. Even though a trial only lasts a few days, it can create massive stress and anxiety for those involved. Victims must give testimony on the witness stand and can expect the other side will publicly scrutinize their character, their lives, and every action they have taken in their past.
Additionally, trial preparation is intensive for clients as well as their attorneys. Settlements allow plaintiffs to resolve a personal injury claim without the added stress of trial preparation, testimony, and waiting longer for compensation.
Confidentiality
Like criminal trials, civil trials are a matter of public record. Once you appear in court, all your testimony and the testimony of others gets recorded, and anyone can learn about the details of the trial. You can expect the defense legal team to attack you in any way possible to devalue your claim and attempt to sway the jury to rule against you. The outcome of the claim and the amount of the jury award, if they rule in your favor, is also public record.
Some prefer to keep the facts of a claim private. This is especially true for plaintiffs who might share some financial liability for their injuries. Many settlement agreements include clauses that prohibit both parties from disclosing details of the agreement, including the amount of the settlement and other facts of the claim. This element of confidentiality can be advantageous for both parties.
Quicker Resolution
After suffering injuries, personal expenses add up. Those who suffer catastrophic injuries never return to their jobs, leaving a large gap in household income. Although some might qualify for disability payments, they do not receive the full amount of their salary.
Medical bills roll in that some victims of negligence cannot pay. It’s doubtful that you will see any money for your injuries and associated losses in under a year from your date of injury if your case goes to trial. In many cases, you will have to wait at least two years or longer, depending on the circumstances of the claim.
As mentioned above, both sides have an incentive to settle a claim before going to trial to avoid the additional costs associated with litigation. Not only is it less expensive to settle, but settling provides a quicker resolution to your personal injury claim. The other side typically issues a check within 30 days for the amount of money you accept in an offer, giving you access to needed funds much sooner than going through the trial process.
Settlement Is Not Always a Viable Option
Although it’s ideal for many accident victims and other victims of negligence to settle their case before going to court, sometimes settlement isn’t the right choice. Your personal injury attorney can review the facts of your claim and give you an idea of what the best path is for your circumstances. Until you have a chance to consult with a lawyer about your claim, here are some common scenarios that often lead to a personal injury case going to trial.
Severe/Catastrophic Injuries
Insurance companies do not like to pay large claims, so they will use every resource and tactic to limit the amount they have to pay a claimant for a severe or catastrophic injury. These claims include compensation for lost earning capacity, which is a legal term for future lost wages.
If a victim claims a catastrophic injury, the insurance company will try to argue that the victim can still work in some capacity to avoid paying damages for lost earning capacity.
Even when the other side concedes that a plaintiff has a catastrophic injury, agreeing on the appropriate number to compensate someone for a lifetime of lost wages is not an easy task. Settlement negotiations can and do break down over the value of someone’s lost wages.
Receiving adequate compensation for a permanent injury sometimes requires going to trial. The same applies to severe injuries.
Disputes Over Liability
One common insurance company tactic to avoid paying a large settlement or jury award is to argue that a plaintiff contributed to the event that led to their injuries or engaged in some behavior that made their injuries worse.
For example, if a driver hit a motorcycle rider and caused an accident, the insurance company might argue the head injury the biker received was worse because he wasn’t wearing a helmet. These types of liability disputes impact the amount of money an insurance company is willing to offer a plaintiff.
Sometimes an insurance company will not offer fair compensation and hold steadfast to the idea of shifting blame to the victim. The only way to receive fair compensation is to take a chance with a jury, giving an attorney the chance to show the evidence that supports the full value of the claim against a defendant.
Liability disputes also occur if the defendant brings in a third party or when multiple parties are listed as defendants in a personal injury claim. Instead of shifting the blame to the victim, defendants play “pass the buck” to other liable parties and fight over who should pay. Multiple defendants make personal injury claims complex, which sometimes requires fighting the case out in the courtroom.
Insurance Company Acting in Bad Faith
Insurance carriers have a legal obligation to investigate, review, and decide claims quickly and fairly. Many companies push moral and ethical boundaries to protect their bottom line. However, a point exists in which an insurance carrier crosses the line and acts in “bad faith.”
If your claim was unfairly denied or an insurance company won’t process your claim expeditiously and fairly, your lawyer might advise that you take your claim to trial. Juries are often unsympathetic with insurance companies that treat injured victims of negligence unfairly, so going to trial in a bad faith situation can potentially reduce the risk associated with litigation. Your attorney will review the facts of your claim and advise you if the insurance carrier has acted in bad faith.
Putting it All Together
Ultimately, it’s your decision whether you want to settle your personal injury claim or go to court. However, settlement is often a better option for everyone involved. Yet, you should not automatically assume that you will settle your case. Your situation might warrant going to court.
It’s best to let an experienced personal injury attorney review your case, determine your eligibility for compensation, and attempt to negotiate a fair settlement on your behalf. You do not have to accept a settlement offer. Instead, you can discuss the offer with your attorney and make the best choice for your situation.