February 29, 2012 in attorneys, injury claims, lawyers, litigation, Miscellaneous, settlement, trial by Jerry H. Trachtman

Negotiated Settlement or Trial — What’s in Your Best Interest?

Some TV advertising injury lawyers like to portray themselves as attorneys who will take your injury claim all the way to trial, and they claim that because the insurance company defending your claim knows they will go to trial, this will somehow make the insurance company more willing to settle with you for top dollar. “Before hiring a lawyer, ask how many trials he or she has had” they proclaim, as if that is the measure of a good injury attorney. Of course you want a lawyer with trial experience, but is going to trial always a good thing? The honest answer is, sometimes going to trial is the right decision and a good thing, but if your attorney is a skilled negotiator who does not find it necessary to go to trial most of the time, that may be a better thing. In fact, an attorney who is a skilled negotiator may do you more good than an attorney who would rather go to trial. How can that be?

At the outset, the risk of losing at trial must be considered. No matter what you may think, even if you believe the facts and the law are on your side, a jury trial is a roll of the dice. If the jurors “don’t get it”, or don’t like you, or are influenced by external pressures in their own lives, you may lose the trial. Losing can mean the jury finds in favor of the other side and you get nothing, or the jury agrees with you but awards you less money damages than you are entitled to. A skilled trial attorney knows how to present the evidence at trial in the best light, and knows how to speak to the jury, and knows how to keep potential jurors who may be biased against you off the jury, but the bottom line is, nobody can predict with certainty the outcome of a jury trial.

Also high on the list of factors to consider in deciding whether or not to go to trial is the expense of a trial. Most attorneys represent injury victims on a contingent fee basis, and you must reimburse your attorney for the out of pocket costs incurred in your behalf. Costs increase if a case goes to trial. Your treating doctors must be paid to testify in depositions, or at trial, or both. Their time is expensive, and rightfully so since they are taken away from their medical practices to testify in your behalf. Often it is necessary for your lawyer to employ medical, engineering, scientific or other experts to give their opinions in depositions and at trial. Their time and their expertise is expensive. Your opposition will employ their own experts to testify at trial, and your attorney must take their depositions before trial. You pay the other side’s experts for these depositions as well. Most of the time, all these experts are not local, and your attorney incurs travel expenses in connection with the depositions. Court reporters must be paid to attend and transcribe all these depositions. Your time is valuable, and you may miss work for a trial, not to mention the psychological stress of a trial on you and your family. If you lose at trial and your attorney recommends an appeal, or if you win at trial and the other side appeals, add another year or two before the appeal court decides your case. If the appeal court decides there was an error made at the trial, your case may be sent back for a new trial. If that happens, you start over and necessarily incur more expenses for the second trial. As you can see, if instead of going to trial your attorney is able to successfully negotiate a settlement of your claim which is acceptable to you, you have now controlled what was originally an uncertain outcome. In addition, depending upon costs incurred before settling, you may net more in your pocket than if you went to trial and the jury awarded you the same amount as your settlement, even if you also recover reimbursable costs (not all costs are reimbursable if you win). And don’t forget the time value of receiving money sooner if you settle.

Florida and many other states require mediation before an injury case goes to trial. If your attorney was not able to negotiate an acceptable settlement of your claim sooner, the mediation conference will be an opportunity for both sides to meet face to face with each other and try to settle. Usually the attorneys for both sides will agree on a mediator, but if they can’t agree the court will appoint one. The function of the mediator is not to listen to evidence and decide a “winner” at mediation. The mediator’s job is to try and get both sides to agree to a settlement that each can accept without incurring the time, expense, and risk of “rolling the dice” at a trial. Your attorney’s preparation and negotiating skills at the mediation conference can mean the difference between reaching an acceptable settlement or going to trial.

In summary, a lawyer who is acting in your best interests is not defined only by the number of claims he or she takes all the way through a trial. A lawyer should be willing and qualified to go to trial if necessary, but should also possess the negotiating skills necessary to maximize the likelihood of obtaining a settlement acceptable to you before trial. If the insurer defending your claim refuses to negotiate or to compensate you with a fair amount that justice requires for your injury, then the decision to go to trial is an easy one. If you ask most successful injury lawyers if they settle more claims than they try, the answer will be yes, far more. So when you see an attorney’s TV commercial that suggests you should ask your attorney how many cases he or she has tried, perhaps it is smarter to ask how many cases he or she has settled without the need for a trial.