Whether your personal injury case goes to trial depends on many circumstances and decisions. Nevertheless, it is a statistical fact that virtually all personal injury claims settle out of court. The plaintiff and defendant typically prefer to settle out of court. This is not always the case, however.
The Settlement Process
The settlement of a personal injury claim usually follows the below procedures:
The Demand Letter
The first step in resolving a claim through settlement is to send a demand letter to the appropriate insurance company. That could mean your own insurance company or the at-fault party’s insurance company (in a Florida car accident, it will probably be your own because of Florida’s no-fault insurance rules). The insurance company will respond with a routine “Reservation of Rights” letter, and the bargaining will begin from there.
The Bargaining Process
Once you dispense with formalities such as the demand letter, you are in contact with the right insurance company, and you know that the insurance claim limits are high enough to make a possible settlement worth fighting for, it is time to enter the bargaining stage.
In the bargaining stage, you negotiate back and forth with the insurance company. It is best if you have your lawyer handle this section for you because they cannot settle your claim without your specific permission.
Litigation in Court
If you cannot settle with the other party to your case, it might be time to file a lawsuit in court. After you file a personal injury claim in court, matters must be taken care of before an actual trial occurs.
Only some of them are mentioned below.
Getting Your Case Docketed
The first steps in filing a lawsuit, getting it docketed, and getting a trial date, are as follows:
- Draft a formal Complaint in which you present your case. Your lawyer should do this for you, even if you are going to small claims court.
- Pay the various filing fees. These are likely to add up to hundreds of dollars. You might be able to obtain a waiver of these fees based on poverty.
- Properly notify the defendant. This will require the services of a court-appointed intermediary.
- The defendant will reply with a formal Answer.
Once these steps have been completed, the court will eventually set a trial date. The trial date could be months after you submit your complaint, however.
Pretrial discovery is a way of collecting evidence from the other side that you can use at trial. It can include:
- Depositions (something like cross-examination of the opposing party’s witnesses under oath)
- Interrogatories (something like written depositions, also under oath)
- Requests for access to physical evidence. For example, the opposing party might want you to submit to an independent medical examination.
- Request for admissions. You ask the other side to admit to anything you don’t want to take the time to prove, and you do the same for them.
The court can sanction a party that unreasonably refuses to cooperate with pretrial discovery.
Most trials occur in a single day, although some drag on for months. The process of a typical trial works something like this:
- Jury selection. The jury needs to be composed of people who both sides agree are impartial.
- Opening statements. The opposing attorneys present their claims and reasoning without, at this point, trying to prove anything.
- Presenting the case. Each side presents evidence, including witness testimony, to support their claims, and to discredit the other side’s claims.
- Closing arguments. Closing arguments differ from opening statements because closing arguments can and do rely on the evidence presented earlier in the trial.
- Jury Deliberation. The jury decides the case based on legal standards provided by the judge.
In some cases, a dissatisfied party might appeal a personal injury verdict.
The Pros of Going to Trial
It is not unreasonably difficult to get into court if you have a valid personal injury claim – just file a personal injury lawsuit. If you are the one accused of misconduct, you can force a trial by simply refusing to settle. There are good reasons why parties might prefer to go to trial in certain circumstances. These reasons include:
- Runaway Juries. In most courts, the sympathies of the jury tend toward the injured victim. If you endured a lot of pain and suffering, some juries tend towards the extreme and award very large amounts of compensation to the victim.
- Precedent. If you are facing a party that you might have to deal with again in the future, a jury verdict can serve as an effective means of deterring the opposing party from repeating whatever misconduct brought you into court.
- Public Vindication. Most settlement agreements include clauses that state (i) the defendant does not admit fault, and (ii) the terms and sometimes even the existence of a settlement must remain confidential. A courtroom verdict is public, and the jury publicly proclaims that one side is right or wrong.
- Discovery. You get access to the pretrial discovery process, by which you can collect evidence that is in the opposing party’s possession, including perhaps the sworn testimony of a reluctant but subpoenaed witness. This process is powerful because you can ask the court to impose sanctions on an uncooperative party.
- Finality. A trial can settle an issue and for all. No matter how stubborn or duplicitous the insurance company might be, winning a lawsuit can compel the opposing party to pay, even if it means seizing their assets.
Keep in mind that just because one side files a lawsuit doesn’t mean there will be a trial. A court might set a trial date nine months after the date that the lawsuit is filed. That gives the parties nine months to sign a settlement agreement, which they usually take advantage of.
The Pros of Settling Out of Court
Settling out of court offers many advantages, as long as the opposing party is bargaining in good faith. Some of these advantages include the following:
- Settling out of court is cheaper, quicker, and easier. There are no court costs, you don’t have to wait for the court to schedule a hearing, and you don’t have to deal with unpredictable juries.
- If you find that you need to play hardball with the opposing party, you don’t need to worry about angering a judge who would like you to settle the case as quickly as possible to reduce the size of the court’s docket.
- You may have good reasons for wanting to keep the terms of your settlement confidential. Life tends to get difficult in unexpected ways when the general public finds out that you have just been awarded a large sum of money.
- Avoiding court also tends to avoid the pretrial discovery process. In pretrial discovery, the opposing parties can ask questions designed to elicit admissible evidence and inadmissible evidence that is calculated to lead to admissible evidence. You might have good reasons for wanting to avoid this intrusion on your privacy.
As stated above, most parties prefer to settle out of court. However, look at your own situation before you decide what is right for you.
A Personal Injury Lawyer Might Be a Practical Necessity
It’s not just whether you win or lose. Think about the difference between winning $5,000 and winning $50,000. A skilled and dedicated personal injury lawyer will seek not only victory but also justice. In your case, that means every single dime your case entitles you to.
With more than a century of combined experience, there isn’t much that can happen, either during settlement negotiations or at trial, that would surprise us. Call Shaked Law Personal Injury Lawyers at (305) 937-0191 or contact us online for a free initial consultation.