We use negotiation in our everyday lives. For example, we negotiate with our partners about where to eat dinner. Our children attempt to negotiate a later bedtime or more television time. Companies engage in business negotiations to buy, sell, or trade products and services.
Negotiating is merely a means of settling differences between two or more parties. The parties may share some interests, but they disagree on other issues. The settlement is a “win-win” for the parties because they each gain something they want.
Generally, negotiations require finding common ground. The parties need to be able to see the matter from each other’s point of view. They also need to be able to compromise for successful negotiation.
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Negotiating Agreements in Personal Injury Cases
A lawyer understands how to maximize the elements of an argument that benefit their client. They also understand how to minimize the negative aspects of a case to reach an agreement that is in the client’s best interest.
In personal injury cases, the most commonly negotiated matters are fault and damages.
Negotiating Fault for an Injury
The person who caused your injury may deny fault because they want to avoid liability. Being liable means that the person is legally responsible for damages caused by their actions. Therefore, denying fault is the best way to avoid paying an injury claim.
Liability insurance companies typically handle the negotiations for most personal injury claims. The insurance company could agree that its insured is 100 percent at fault. Also, the company could agree to settle the claim without admitting fault. In those cases, the only matter to negotiate would be the value of damages.
However, the insurance company must pay the damages if its insured is at fault. Therefore, the insurance company does everything within its power to avoid liability, including blaming the victim for causing the accident.
The insurance company might raise allegations of comparative fault to avoid paying the claim. In Florida, when you are 50% or less to blame for the cause of your injury, your compensation can be proportionately reduced. However, if your allocated fault exceeds 50%, you’re barred from receiving money from another party for your damages.
For example, if you are 20 percent at fault, you would receive 80 percent of the value of your damages. Therefore, if your damages equal $200,000, you would receive $160,000. If you were found to be 51 percent or more at fault, you’d receive nothing.
If you are partially to blame for the cause of your injury, your attorney may negotiate a settlement based on each party being responsible for their share of the damages based on their percentage of fault.
Negotiating the Value of Damages
- The cost of medical care and treatment
- In-home or long-term nursing care or personal care
- Lost income and benefits, including reductions in earning potential
- Impairments, disabilities, and disfigurement
- Mental, emotional, and physical pain and suffering
- Reductions in quality of life and loss of enjoyment of life
It is up to you to prove the value of your damages. Your attorney may retain medical experts and financial professionals to assist in proving the value of your damages.
For example, a medical expert testifies about the extent of your permanent impairments, the need for ongoing medical and personal care, and how the disability impacts your daily life. A financial professional testifies about the cost of future care and how much money you will lose because you cannot work.
If your attorney and the insurance company reach an agreement, you sign a settlement agreement resolving the claim. The settlement agreement is a signed contract, which is enforceable in a court of law in the United States. Therefore, it is best to consult with a Miami personal injury attorney before signing a settlement agreement after an injury.
Negotiation Preparation for a Personal Injury Case
Your attorney prepares a settlement demand package for the insurance company. The settlement package contains a letter outlining the facts of the case, why the other party is at fault, your damages, and the amount you demand for settlement. In addition, your attorney may include copies of medical records and other evidence supporting the allegations.
The settlement demand package is the first step in settlement negotiations. The insurance provider reviews the demand and responds by denying, accepting, or issuing a counteroffer. In many cases, the next step consists of back-and-forth discussions regarding the settlement.
In some cases, the parties may meet once or several times to negotiate in person. In addition, the lawyer may communicate in writing discussing the settlement proposals. Most personal injury cases are settled through this type of informal negotiation.
Alternative to a Negotiated Settlement
If the parties cannot reach an agreement to settle in an injury case, they have several options. The parties could file a lawsuit and proceed to trial to resolve the matter. The parties may also enter mediation or arbitration.
Mediation is similar to the negotiation process. The parties work with a neutral mediator to facilitate settlement negotiations. The mediator assists the parties with settlement negotiations but does not offer a solution or opinion.
Arbitration is similar to court but very informal. An arbitrator listens to the evidence presented by each party before rendering a decision. The arbitration can be binding or non-binding.
If the parties go to court, there is still a chance that the matter could be settled before the case goes to trial. If so, the parties enter a settlement agreement that ends the lawsuit.
Call Our Miami Personal Injury Lawyers for a Free Consultation
If you have been injured in an accident, call our office for a free consultation with one of our Miami personal injury lawyers. It does not cost you anything to speak with a lawyer and receive an assessment of your case, contact or call us today at (305) 937-0191.