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To Try or Not To Try….That Is The Question

When clients contact us after an injury or incident, we explain to them that there are two potential ways to be compensated from the people at fault. You can have a jury or judge determine who was at fault and what you deserve as compensation (a trial) or you can negotiate a settlement with the insurance company or attorneys for the defendant (a settlement). Some cases gets settled prior to filing a law suit. Others get formally filed with the court but then settled at some point prior to actually going before a jury. Only about 5% or less of civil cases filed actually end up going to trial, the rest are either dismissed or settle along the way.

Whenever a case goes to a jury both sides are taking a risk. You or your attorney can never be 100% certain what a jury will do and its possible that even with the best of facts a Plaintiff could lose the case. Alternatively, a Plaintiff could win but the jury may give less money that was offered prior to trial in the form of a settlement offer. Once you factor in the added expense of trial this is an effective loss to the Plaintiff as they would have done better settling the case rather than going to trial.

On the flip side a defendant is usually paying attorneys by the hour to defend a case. The cost of litigation can run high. By going to trial not only is the defendant incurring significant expenses but they are also taking the risk that a jury will make a large award of damages to the Plaintiff. Juries do not like defendants who they perceive as trying to avoid responsibility for their actions. A good lawyer can try to persuade the jury that the Defendant has not taken responsibility and that they are the only ones that can make the damaged party whole again. Many insurance companies prefer not to risk a large jury verdict and when they know they have some liability and exposure they prefer to negotiate a deal that they can live with.

Although both sides often work hard to negotiate a settlement there are some cases that simply need to be decided by a jury. There are many reasons for this. Sometimes the parties simply disagree as to who was at fault. In some cases where the Plaintiff alleges that more than one individual or party did something wrong they all agree that they are liable but then can not agree how to distribute the fault amongst themselves. In other cases the Defendants clearly think that they are liable but disagree with the Plaintiff about the cause or extent of their damages. A very common defense strategy is to admit fault but then take the position that the Plaintiff is not as hurt as they claim to be or the they are hurt but it is due to some cause other than the Defendant’s wrongdoing.

In Hollywood, a good trial makes for good TV. However, settlements are a more of a “reality TV” – a more likely outcome. Both Plaintiffs and Defendants prefer to have a certain and known outcome which is one of the reasons so many cases settle. Settlements are also more low-profile, as far as reputation management. Most settlement agreements contain a confidentiality provision where the parties agree not to publicize the results. Another attractive feature of settlement is that they can occur much quicker than trials which can go on for years and then be appealed. In addition to the cases that settle, there are others that simply go away because the evidence does not pan out as the Plaintiff had hoped or are abandoned, re-filed or even merged with other cases.

While statistics suggest that your case will likely not go to trial, it is still incredibly important to hire an attorney who can take your case before a jury if that is what needs to ultimately happen in order to receive fair and just compensation. If the defense does not believe you are willing to take your case to trial it will affect how they handle the settlement negotiatons. A Plaintiff needs an experienced attorney in order to be able to prepare every case as if it is headed to trial which will allow them to negotiate from a position of strength rather than weakness.