Most personal injury lawsuits are settled out of court; less than 5% of all cases are adjudicated by a jury. Of the 5% that make it to trial, 90% end up favoring the insurance company. Those are staggering numbers! So, why do insurance companies end up settling out of court more often than not? The answer to that is quite complex and deserving of some enunciation. Both the petitioner’s (plaintiff’s) and the respondent’s (defendant’s) attorneys spend much time articulating the merits of the case. In civil cases, unlike in criminal cases, the respondent has the option to “answer” a lawsuit, thus placing the burden of proof on the petitioner, which in turn inaugurates settlement negotiations between the interested parties. There are many benefits to keeping a personal injury case away from the bench–and out of the hands of a jury. Read on to get a sense of how a personal injury case might typically proceed.

When Will Settlement Negotiations Generally Begin?

In a civil suit, the respondent will almost never engage in serious negotiations until all of his/her pretrial investigation has been completed. This includes discovery collection, such as interrogatories, depositions, and any relevant cerebral evidence; and corporeal evidence, such as x-rays, blood samples, and any relevant physical evidence–If the respondent believes her/his case is strong enough to withstand even the most minute scrutiny.

In larger more complex cases, the respondent may file a motion for summary judgment right away. This forces the petitioner’s hand to show his/her cards, so to speak. If the petitioner isn’t ready, or has ignored certain procedure (such as answering the respondent in a timely fashion), such will be made known, hence strengthening the defense. If the judge grants summary judgment, case closed and the petitioner receives nothing (unless ordered by the court). If not, it’s time for both sides to talk.

Seasoned attorneys always wait to hear the respondent’s initial offer. Why? Because demanding a specific settlement come across as desperate; the respondent will most definitely low ball the initial demand (or not respond at all); and from there it’s an uphill battle for the plaintiff–not a good strategy.

How Are Settlement Discussions Conducted?

In lay terms, attorneys from both sides will have a conversation. The side that proffers a deal first typically has the upper hand. For example, the insurance company’s attorney offers to settle for X amount of dollars; plaintiff doesn’t think the amount will cover expenditures, including aggregate damages and unforeseen deprivations. At this point both sides may agree to proceed by either a) renegotiating, or b) agreeing to an arbitration hearing. It should be duly noted that judges and juries should only interject as a means of last resort when all other opportunities to settle have been exhausted.

Arbitration

Explaining arbitration is rather simple. It is a less formal procedure in which an arbiter (usually a former judge or retired attorney) takes all the accepted evidence into account and renders a judgment based on his/her findings. These judgments are as legally binding, as if said judgment was entered into by a jury or bench. The losing party may be responsible for all expenses, including paying the arbiter–which could range from a few hundred to a few thousand dollars–and attorney’s fees for both sides.

You Cannot Rescind An Offer Once Accepted

“A deal’s a deal” These words ring true in life as in law. Once the papers are signed and the judge’s seal affixed, there is no turning back. The only scenario in which a case can remain open to future suits is if a judge dismisses the case “with prejudice,” which implies that the case can be brought up again as long as the statute of limitations (if any) hasn’t exhausted.

Negotiations can take a long time, often nine months or more for complex cases. Some cases, however, can be settled virtually overnight. It all depends on where your sense of justice leads you and the kind of case proffered. If you have been seriously injured, have been involved in a life altering accident, or your ability to work and live a normal life has been impeded by no fault of your own, prepare for a long, exhausting court battle. Fender benders and minor cases, intrinsically, shouldn’t take nearly as long, and are typically settled swiftly. In any case, always seek the advice of an attorney!