Needless to say, our attorneys are often asked by our clients when they should settle their personal injury lawsuit and in what amount. These question, many times, presuppose that both liability and damages are clear enough to warrant a settlement in a particular case. Oftentimes, liability is hotly contested as are damages and a case is therefore made more difficult from the settlement standpoint. However, in a case where the liability of the person causing the injury is rather clear and the damages are well documented, a fair settlement should be achieved. It is with respect to this type of case that we attempt in this blog to answer the question posed.
When should the client settle his lawsuit when he or she has a good case of liability and damages? The answer is when an offer is made that represents the fair value of the claim. How is the fair value of a claim determined? By analyzing Jury Verdict research data for similar cases involving similar facts of liability and damages in similar venues to make sure that the settlement offer being made is most likely the same amount that could be obtained by the client in front of a jury. Our attorneys tell our clients that if they are offered in settlement an amount of compensatory damages that would roughly be what they could expect to receive from a fair and impartial jury then they should settle their case. If they do not get such an offer they should refuse the settlement and proceed to trial. Obviously, if they get an offer over and above the claim evaluation of what a fair jury would do, they clearly should take the settlement offer.
Many times our clients tell us to settle cases when we recommend against it. Sometimes an offer is made that, in our judgment, is lower than what we would obtain from a jury and nonetheless the client does not wish to gamble and wishes to settle the case even though the amount of money being offered might not reflect the best settlement possible. In other cases, when a fair offer is made, we have had clients who have told us not to accept the offer because they do not think it is enough based on their own subjective evaluation. Obviously, when subjectivity enters into the picture and dominates the analysis, cases become difficult to settle.
One who has been seriously injured has a great deal of difficulty attaching a dollar figure to their pain and suffering. Indeed, no amount of money can compensate for amputated limbs lost vision, paralysis, broken backs, broken necks, incredibly complicated surgery, lost jobs, foreclosed homes, etc. We see all of these things in serious and catastrophic injury cases and therefore it is very difficult to talk about “fair” compensation for such claims. The innocent victim of negligence, who was sitting at a red light and hit by the drunk driver, who undergoes surgery, loses their job and is permanently injured has a great deal of difficulty determining what might be a fair settlement for their case. Subjectivity, obviously, enters into the picture which is why it is they need objectivity from their attorney. An objective attorney looks at the facts, compares it to what other juries are doing under similar circumstances and advises the client what a fair settlement would be, again, that being the amount of money that a jury most likely would award if they heard all the evidence, both on liability and damages.
In a case of contested liability where there may be multiple witnesses who give different accounts as to who was liable for a particular collision, sometimes it is necessary to evaluate the case as if it were a case of clear liability (uncontested) and then discount the value of the claim by the percentage of doubt created by the adverse testimony. For example, if the lawyer believes that a case will be won 7 out of 10 times if it is tried in front of a jury, then the settlement amount might be 70% of a clear liability case. If a lawyer believes that he is going to lose the case more often than he is going to win the case, then, of course, he would discount a clear liability case substantially and advising his client what a fair settlement might be for the hotly contested liability case. Similarly, if damages are less than clear, that being most likely the case when a client contends they are seriously injured but they have a long history of other health problems of a similar nature, again, one must use a discount formula in determining what a fair and impartial jury would likely award in such a case. While all of these factors are oftentimes difficult to evaluate, having experienced counsel available to the client to guide them through the claim evaluation process is a fundamental ingredient of helping any client achieve a fair settlement for their case.
The answers to the questions above, we believe, are fairly straightforward. A case should settle when a fair offer of settlement is made. If the offer made is not what a fair and impartial jury would likely award, then the offer should be rejected. If the offer made is what a fair and impartial jury would likely award then there is no reason not to settle the case and to proceed to a jury trial because the amount of the offer is essentially the same that one could expect to receive from a jury. While every case is different, the needs, attitudes, biases, and subjective evaluations of clients always complicate the issue of when a case should be settled and for what amount. Experienced counsel can provide objective claim evaluation advice in serious injury cases and help clients get their cases fairly and expeditiously settled with a just result achieved.
This is the key to getting a good result: Experienced and objective advice from a competent attorney.