Do most personal injury cases settle or go to trial?
If you or a loved one recently suffered a serious injury at the hands of another person or company, you might be considering your legal options to pursue compensation—up to and including filing a personal injury lawsuit.
At this time, you might have questions like:
- What percentage of personal injury cases go to trial?
- What is the percentage of cases that settle before trial?
- Do most personal injury cases settle?
In each case, the answer depends on how the law applies to your unique case. Provable facts frame these legal issues. Legal questions often include, for example, the doctrines of comparative liability, contributory negligence and rebuttable presumption. Understanding these complicated legal principles often requires the advice of an experienced personal injury lawyer.
Personal injury civil cases will involve negligence or willful conduct. In either case, the plaintiff (injured person) must prove that the defendant’s actions were willful or failed to satisfy a legally recognized standard of care. Further, the plaintiff must prove that their injuries were a result of the defendant’s action and weren’t caused to any extent by any other cause.
A plaintiff’s chances of recovery (and how much they are owed), as well as a defendant’s potential liability, are subject to many variables. Analysis of those variables requires—yep, you guessed it—the expertise of an experienced lawyer.
Personal injuries and car accidents
In a majority of personal injury cases, an insurance company is involved. If an injury is the result of an auto accident, for example, the issues are complicated by Florida’s no-fault insurance law. Under that scenario, to some extent, it doesn’t matter who is at fault.
However, you are still faced with dealing with your own insurance company concerning the extent of your injuries and the limitation on the insurance company’s no-fault obligations. For example, your no-fault insurance company is not responsible for pain and suffering damages.
If you want to recover damages outside of the limits of no-fault insurance, you will have to seek compensation through the legal system in civil court. But suing someone doesn’t always mean that you’ll end up before a judge and jury. In fact, the vast majority of personal injury cases are settled before trial.
Should you settle or sue?
No one can answer this question until they have more details about your individual case.
Whether it’s best to sue or negotiate a settlement, the process must begin with a demand letter served to the defendant, which is prepared by your lawyer.
Your demand letter might state the damages (amount and description) that you are claiming, along with the legal basis for your claim. It might also explain the pertinent facts, your evidence and a deadline for settlement to avoid litigation. Your attorney can decide on the best strategy based on your case. For example, they might decide not to put all of the cards on the table up front.
The defense attorney will then have an opportunity to respond to the demand letter, perhaps with nothing more than an acknowledgment of receipt. Either way, the negotiation process will begin.
After reviewing the options, your attorney will advise you whether it’s worth proceeding with further negotiations or file a lawsuit.
What are the pros and cons of a lawsuit?
✔ Generally, a potential damage award is greater from a lawsuit than a settlement.
✔ A lawsuit might compel the defendant to settle. It can be settled at any time after a lawsuit is filed, even after a trial is commenced and before a verdict is rendered.
✔ Sometimes the defendant or defendant’s insurance company simply refuses to settle for a reasonable amount. In other words, you have no choice.
✘ A lawsuit takes a long time, sometimes years. Even if you achieve a favorable damage award, you have to take into account the value of your time.
✘ Even if you win a good damage award, the defendant can appeal, drawing out the process longer.
✘ There is always a risk of losing and recovering nothing in a lawsuit.
✘ A lawsuit is costly, even if your attorney takes the case on a contingent basis.
What are the pros and cons of a settlement?
✔ Settlements take less time. While lawsuits can drag out for a year or more, settlements often take less than half that. If an insurance company is inclined to settle, they will do so quickly because a delay costs them attorney fees and other expenses.
✔ A settlement process is less stressful than litigation.
✔ A settlement is final. A positive award in litigation can be appealed. An appeal will drag it out further and might overturn a favorable award from the lower court.
✘ There’s always the chance that you will regret your settlement with the thought you could have recovered more with a lawsuit.
✘ A settlement can’t be appealed. Settlement agreements typically provide a “save-and-hold-harmless” clause that precludes any further actions. If new injury conditions develop, there can be no further action.
Which legal option is right for you and your family?
Some statistics show that as much as 90 percent of personal injury cases are settled. However, that statistic should not dictate your own choice between litigation and settlement. Each case is different and should be evaluated independently. What’s more, that statistic can be misleading. Many, if not most, of those settlements are reached after a lawsuit has been filed.
Ultimately, you should heed the advice of your attorney.
Your attorney can give you an educated assessment of what a good settlement is in your type of case. They can tell you the merits of your claim and tailor your settlement to optimize your recovery.