The vast majority of personal injury cases in the United States - up to 95%, according to some studies - are negotiated and settled out of court without ever going to trial.
The vast majority of personal injury cases in the United States - up to 95%, according to some studies - are negotiated and settled out of court without ever going to trial. That may seem like an excessively high number until you realize that, for the most part, an out-of-court settlement is often the quickest (and easiest) way for both parties to close a case and do so in ways that are beneficial for everyone. Think of a settlement as a sort of monetary mitigation—a tool that allows both sides to compromise a little but still walk away with a fair resolution.
That's why the negotiation process is so important after you've been hurt in a personal injury accident.
But in general, injured persons often receive higher compensation in less time in pre-trial settlements than is typical for cases that go to trial. This is especially true when considering that the injured party does not always win at trial - going to court carries the risk of losing the case and receiving no compensation at all.
In a typical personal injury case, both parties to the accident would prefer to avoid the uncertainty of a trial. Trials can be lengthy. They can be costly. They can stall the recovery process for victims and force them to prolong returning to life-as-usual. But those same inconveniences extend to the defendant as well.
While the injured party may be financially motivated to finalize a settlement quickly, the party accused of negligence is often particularly motivated to settle out of court in order to avoid negative publicity or the admission of liability. This is particularly common in cases where the defendant is a corporation, a government agency or a prominent individual.
Since most personal injury cases are in fact settled without going to trial, professionals who represent parties to accident cases participate in settlements regularly. Insurance companies have extensive experience and tools at their disposal to help them put a value on an injury case, and a seasoned accident attorney is similarly equipped to formulate an appropriate settlement amount for their clients—one that takes into account all outstanding and potential financial impacts stemming from a personal injury accident.
When both sides of a case are good at sizing up its value, it may only require a little bit of negotiation to arrive at an amount that is both reasonable and mutually agreeable, so a good injury attorney whose interests are aligned with the client’s interests will always try to negotiate a reasonable settlement first.
It is not at all unusual for a personal injury case that goes to trial to take several months or a year or more to be resolved, and the defendant’s insurance company is seldom motivated to expedite matters once they get to court. Although the trial itself might take just a couple of weeks, discovery, mediation and scheduling are just a few of the factors that typically result in a process that takes much longer.
Think about it: If you're injured, can you afford to be out of work without any sort of financial support for weeks or months while the bills pile up?
On the other hand, a pre-trial settlement in an injury accident case can often be successfully negotiated and finalized with the insurer in just a few weeks. Settling your personal injury case out of court is nearly always the fastest way to get the compensation you're entitled to after you've been hurt in an accident due to another driver's negligence.
Settling your personal injury case out of court is nearly always the fastest way to get the compensation you're entitled to after you've been hurt in an accident due to another driver's negligence.
Personal injury attorneys typically only collect a fee if and when you receive financial compensation in the form of an insurance settlement or a court judgement. Although fee structures vary, a common arrangement is for a law firm to collect about a third of a pre-trial insurance settlement. . That might seem like a lot but when you consider everything that a legal expert and their team can do for you, it's not really: investigation, documentation, negotiation—not to mention handling all communication with other parties, doctors, hospitals, and bill collectors. Really, when you hire a personal injury attorney, the only thing you should have to do is work on getting better.
But what if your personal injury case goes to trial?
In such cases, the total fee collected by most personal injury attorneys is generally bumped up closer to 40% of your award is the result of a trial. So if your lawyer is able to settle your case out of court, you'll usually keep a larger percentage of your total compensation.
But those fees aren't the only thing that can reduce the amount of your financial award. Indeed, a trial also comes with considerable (and unavoidable) expenses. These expenses will generally be paid out of your award as well—further cutting into your compensation package.
This financial motivation shouldn't keep your attorney from going to trial if the insurance company won’t agree to a reasonable settlement. These fees and expenses described above are absolutely reasonable and typical. But if you can avoid a trial, it typically reduces your financial expenditures (your attorney fees and expenses) and increases the overall amount of compensation you keep in your hand.
Your lawyer should inform you in detail and discuss with you all of the specific fees and charges that may potentially be associated with your case before you agree to representation. Make sure fees are covered thoroughly in your initial consultation with an accident attorney.
Pre-trial settlements—once reached—are guaranteed. If your personal injury case goes to trial, however, there is no guarantee that you will win an award at all. There are a number of factors that could put your claim at risk even before it reaches a jury (including simple things like missing deadlines, failing to follow procedure, and being ignorant of the law). Then, once your case does make it into a courtroom, the fate of your personal injury award rests in the hands of a jury.
That's right, even if that jury decides in your favor, your award could still be smaller than the amount you might have settled on before trial.
All the details of a trial, including any evidence or testimony presented by you, the defendant, your attorneys, or any other witnesses, and any compensation awarded, will normally become matters of public record that can be accessed by anyone, now or in the future, including:
While filing a valid claim should never be something to be embarrassed about, you may not want all of this personal information out in the world. Unfortunately, if you go to trial, there's really no easy way of preventing that.
A pre-trial settlement, on the other hand, will allow you to keep all of that information private. Indeed, the party accused of negligence in a settlement will often require a non-disclosure clause in order to protect themselves from public scrutiny. (You've no doubt heard about such things in high-profile lawsuits involving celebrities that are settled out of court.) What most people don't know is that you –as the injured party—can make the same stipulation.
That means the other parties involved can't leak any of your personal information and if they do, there are penalties in place.
Despite the substantial advantages of a pre-trial settlement, a competent and experienced personal injury lawyer will always keep the option of going to trial on the table. Why throw away a perfectly capable tool that could help you win the financial support you're entitled to before you ever need to use it?
Litigation can be the right decision if the insurance company simply refuses to settle, or if the insurer’s final offer is just too low. Either way, having an experienced personal injury attorney representing you is likely the best way to actually get the compensation you are entitled to under the law.
Your attorney should discuss with you in detail the benefits and potential risks of taking your case to trial, and allow you to make an educated final decision.