Although some people believe that personal injury lawsuits frequently go to trial, the opposite is actually true. According to FindLaw, the vast majority of personal injury cases are settled before trial, and even before a lawsuit is filed.
So why do so many cases settle?
The main reason that most cases settle out of court is the desire to avoid the high expenses associated with litigation. Trial lawyer fees as well as the cost of expert witnesses, depositions, travel, and exhibits add up, but most of these expenses can be reduced or eliminated entirely by settling before trial.
You may be saying, “Yes, I know litigation is expensive, but my attorney is representing me on a contingency basis, so I don’t have to put any money out up front. Why not go to trial?” While it’s true that you don’t have to pay the additional costs of litigation until after your case is decided, the attorney fees and costs associated with litigation will come out of your settlement first, before you see any of the proceeds.
So if you settle out of court, even if it’s for a lesser amount than you may have gotten at trial (although there’s no guarantee whatsoever of that happening), the chunk that your lawyer takes off the top for his fees and costs will undoubtedly be much less before trial than they will be after.
Taking a case to trial is also very stressful for many plaintiffs, who often do not realize the extent that their injury as well as details of their lives will be publicly played out in a courtroom. When a case settles out of court, the details remain private, but if it goes to trial, the court documents become public record, available for anyone’s inspection.
The terms of an out-of-court settlement are put in writing and agreed to by both parties. But there is no such predictability when trying a case in front of a jury, where the results are often extremely unpredictable.
Also, when a case is settled out of court, it is officially over, but in a court case, the losing party is free to appeal a decision, further dragging out an already lengthy process.
So When Is Going to Trial the Right Thing?
Sometimes settlement offers are so unfair to one side that there is really no choice but to take the case to trial, especially if the settlement won’t be sufficient to cover all the plaintiff’s present damages, not to mention future medical care and the loss of earning capacity he may face in the future.
If certain aspects of your case might affect society as a whole, filing a lawsuit can help make an important point. If your case challenges Constitutional limitations or concerns a fundamental right, taking it to trial may create precedent and potentially change public policy, things that a settlement agreement will never do.
Image by Dan Moyle