Very few personal injury cases actually go to trial or reach a jury verdict. The majority of cases will be settled before trial or during the trial. This is because avoiding the courtroom and the jury is beneficial to both sides of the personal injury case (plaintiff and defendant). To find out how a personal injury attorney can help you to get the settlement that you deserve, read on.
When Settlement Discussions Begin
Whenever a civil lawsuit is filed, the defense attorney will have an opportunity to conduct pretrial investigations, known as the discovery stage, which includes interrogatories, depositions, and other discovery tools. The serious settlement discussions won’t begin until this part of the case is completed. The insurance company will want to have all of the information available before making decisions.
Sometimes, the defense attorneys will not want to talk about a settlement until after the expert witnesses of the plaintiff are identified. This is generally true of larger and more complicated cases where the defendant wants to see if the plaintiff is truly prepared to make their case in a trial.
There are also times where the defense attorney might file a motion for summary judgment to dismiss the lawsuit. If this is the case, then the settlement discussions may not begin until the court has granted or denied this motion. If the motion is granted, the case is dismissed. If the motion is denied, then this is when the defense will be ready to discuss a serious settlement. Sometimes, the defense will discuss the settlement while waiting for the motion for summary judgment to be granted or denied. Each case is different when it comes to settlement negotiations.
In discussing settlement, it is the insurance company and the defense attorney who hold all the cards. They are the ones with the money. If they are not ready to talk seriously about settlement, the plaintiff and the plaintiff’s attorney will get nowhere in settlement discussions.
The defense attorney is the one who holds the cards when discussing settlement because they are the ones who have the money for the settlement. If they don’t want to discuss settlement yet, then all the plaintiff can do is wait until they are ready to. At the same time, it is wise to avoid appearing too eager for a settlement discussion because you don’t want the defense to think that you are desperate. When they sense desperation on the part of the plaintiff, they will make a low offer for much less than the value of the case in hopes that you’ll settle quickly. The plaintiff’s lawyer is wiser to wait to discuss the settlement until the defense attorney requests a settlement demand.
How Settlement Discussions Are Conducted
Some settlement discussions don’t even require a demand letter. If the case is small and if the lawyers know each other, then the discussions may be handled over the phone between the two attorneys. If the initial demand is too high for the defense, then they may refuse to respond or will simply respond that the demand is too high. If the defense responds with a counteroffer, then the negotiation has begun. You may be able to settle in this way, or the case may go to mediation.
Mediation is typically used in larger personal injury cases, though it can be used in smaller cases too. This is where the lawyers and clients come together to attempt to settle the case with a private mediator or judge (not assigned to case). Many courts now require mediation to attempt to settle the case without going to trial. The mediator’s job is to get the numbers of the plaintiff and defendant closer together so that they can agree. This is usually a successful process, though it does not always work.
Length of Settlement Negotiations
Sometimes, the settlement negotiations will continue for a very long time and this can be discouraging for the plaintiff. However, there are many reasons that this can happen, and as long as both attorneys are still communicating and negotiating, there is likely no reason to worry.
Settlement of Your Case
To settle the case, the injured person can accept the defense attorney’s settlement offer. The plaintiff’s attorney cannot accept an offer without the client’s consent, though once you consent to a settlement amount, your attorney will notify the defense attorney by email/letter/phone/fax to settle the case.
You Can’t Go Back
Once you’ve accepted the settlement offer, you cannot go back to seek more money. Your case is over, and this is considered to be completely final in most states. Even if you change your mind within moments of accepting the settlement offer, you can’t go back on it. It is just like any contract where there is no way that the courts will reverse the agreement. Carefully consider the amount of money, the terms, the release of liability, the confidentiality agreements, etc., before you accept a settlement.