How To Secure a Better Settlement

If you've suffered injuries due to someone else's fault, then you may be entitled to damages under the law - but it's important to understand that you don't have to go through the trial process in order to recover these damages. At any point, any or all of the relevant parties can agree to a settlement and end the lawsuit prematurely, before judgment is ordered. This can be a bit confusing for those who are unfamiliar with the process of litigating a personal injury case through to completion.

So, how does it all work?

Many lawsuits will never proceed all the way to trial, and for good reason - settlements are popular because they allow for a negotiated compromise early on in the litigation process, thus saving each party time, money, and effort that would otherwise have to be expended on litigation.

For example, suppose that you - the plaintiff - are injured in a motorcycle accident due to a negligent driver - the defendant - with damages totaling up to $300,000. You consult with an attorney and decide to file a lawsuit against the defendant. Pre-trial litigation will proceed, with each party communicating their demands, gathering evidence, identifying witnesses, and consulting with experts. Eventually, if a settlement isn't reached, trial will proceed (perhaps years later), and the case will be litigated before a jury. Judgment will be ordered and if successful, you may be awarded damages.

In nearly all cases, it is preferable to negotiate a settlement sooner, rather than proceeding through to trial. First, let's take the above example. In the above example, the process of litigation is quite demanding - there are time, money, and effort costs in going ahead with a lengthy litigation. If you get to trial, then you may not necessarily succeed. Trial judgments are win-lose. If you lose, you recover nothing, but if you win, you may not even recover the full amount of damages you're entitled to! Though you may estimate your damages at $300,000, the jury may award you only a portion of the estimated damages.

Suppose that there is only a 50% chance of success at trial. As such, your total recovery must be offset by the prospect of success/failure. Pre-trial, your estimated damages recovery is therefore only $150,000. This partial recovery may be further modified by a lower award by the jury (recall that a jury is not necessarily going to award you the full damages that you claim at trial).

As such, litigating your claims at trial is a very risky way of recovering damages to compensate you for your injuries. Instead, settlement allows plaintiffs to skillfully negotiate a settlement compromise that avoids the risk of a trial loss and ensures recovery.

In the above example, if a settlement compromise was reached before trial for $200,000, it would be less than the estimated total damages, but more than the potential damage recovery given that there is a significant chance of losing and that the jury may award only partial damages.

Settlement negotiations are generally ongoing throughout the litigation process. When your attorney sends the opposing counsel a demand, for instance, then the defendant may respond favorably to the demand, may make a counter, or may simply ignore or reject the demand. There are many opportunities for settlement negotiations, however, beyond an initial demand letter. Additional demands may be sent, a mediation session may be ordered or agreed upon, and more - attorneys may discuss settlement at any time. Courts want to encourage settlement, as it keeps disputes out of court (freeing up court time, public moneys, etc.).

Receiving a Favorable Settlement

Fundamentally, the key to receiving a favorable settlement is in building a case that is 1) more likely to succeed, and 2) in which the damages are higher. The more effectively you can convince the defendant that they will lose in the event of trial, the stronger position you are in for negotiating a favorable settlement early.

A number of factors affect the value of your settlement, including but not limited to:

  • The severity of injury
  • Amount of damages
  • Predictability and measurability of damages
  • The nature of the accident
  • The culpability of the defendant, and how obvious the defendant's fault is
  • The strength of the case from a legal standpoint
  • And more.

By building a rock-solid case early on, you will force the defendant to seriously consider the risks of proceeding to trial litigation (accruing more legal expenses and potentially being liable for even more damages) and balance them against the cost of settlement.

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If you have a legitimate personal injury case, a skilled attorney will be able to work towards securing a favorable settlement for you, avoiding the hassle and risk of trial litigation. For a free consultation with an experienced Mountain View personal injury attorney, call the Law Offices of Brian O' Grady at (650) 318-6131 to set up your appointment today.