There are normally many opportunities to try to settle your case before trial. In most personal injury cases, the statute of limitations is two years from the day of the incident.
In some cases, we may try to settle without filing a lawsuit. This is possible when we have enough evidence to evaluate past and future damages, and when the party at fault is cooperative in providing an early disclosure of insurance policy limits.
If we are unhappy with the outcome of pre-litigation settlement negotiations, we will likely go ahead and file a lawsuit. Sometimes the filing of the lawsuit by itself persuades the defense to make a more reasonable settlement offer. In many cases, we find it advantageous to go ahead and file a lawsuit immediately.
As a general rule, when we demand a large sum of money to settle a case, the defense will insist on obtaining a lot of information from our client. This is accomplished through informal cooperation, depositions, written discovery and sometimes medical examinations. In clear liability cases that proceed to litigation, it is common to discuss a settlement after this information is exchanged. Where there are significant long-term injuries, it is incumbent on us to use credible evidence to demonstrate the value of those injuries before we make a serious settlement demand.
In cases in which the defense can contest liability, we might take depositions from those who claim to support the defense position before choosing to talk about a settlement.
Q: Is it better to settle cases early?
It depends. Every case is unique and every client is unique. Before determining a settlement position, we need sufficient time to do a comprehensive evaluation of the key issues in the case.
We must be able to answer the following questions:
- Can we prove who was at fault?
- What is the nature and extent of our client’s injuries and damages?
- What is the financial condition of the person or corporation at fault?
- Is there sufficient insurance and/or assets to fully compensate our client?
- Are there multiple parties at fault?
- If the defense makes a settlement offer, what are the costs and risks going forward if we reject that settlement offer?
Those questions are always important in determining when to consider settling and for how much money. Just as important as an understanding of the case is, we need to understand our client’s particular circumstances. For example, clients who have terminal illness unrelated to the case will typically want to settle early so they can focus the remainder of their life on other seemingly more important matters.
Another example is if you have a client without health insurance. We need to make sure the settlement is sufficient to cover future medical care related to our client’s injuries.
There is no bright line rule as to whether it is better to settle early versus going through the process of litigation versus going all the way to a juror verdict.
Q: Does the defense usually offer more money immediately before trial?
Don’t count on it.
If you want to settle your case but you strategize to hold out until the last minute, there’s no guarantee that the defense will increase the settlement offer. Also, by holding out you risk a smaller net outcome because undoubtedly your attorney is investing more money on expert witnesses, fancy exhibits, subpoenas, jury fees, etc. as the case proceeds and gets closer to trial.
Sometimes, you can achieve a better settlement offer on the day of trial simply because the defense changes its position.
However, the best way of obtaining a better settlement offer later in the process is to show the opposition something “new and improved” about your case such as a compelling witness or powerful animation of the incident, or by tearing apart their star defense expert at a pre-trial deposition. If you want a better settlement offer later in the game, you need to make it happen by the persuasive use of evidence.