Whether you  should accept the insurance company’s settlement offer or proceed to trial hoping to get  more money is a question that every person that has a claim or lawsuit pending will ask at some point during the process.  The only person that won’t is the one that isn’t offered any money at all, thus making the decision rather easy.  Unfortunately, there is no one right answer to this question.  So, what should you do?

     The reality is that the vast majority of injury cases settle before trial.  The number that settle before trial is estimated on the low side to be about 80% and more likely well over 90%.  I previously wrote a blog about which types of cases are more inclined to settle or be tried, but except for the “no settlement offer” types of case, every injury or death claim will have some settlement offer made at some point during the process, and the question is: do you take the money?  How do you answer that question?

     A study soon to be released in the September, 2008 issue of the Journal of Empirical Legal Studies suggests that most  injury victims who decide to go to trial hoping for more money tend to get less money than what the insurance company offered.  The authors of the study apparently analyzed cases over a number of years and conclude that injury victims that decide to go to trial receive less money in 61% of the cases, to the tune of approximately $43,000.00.  I have only read news items about this study and I am anxious myself to actually read all the details of the study.  One thing I know for sure is that statistically, well over 80% of cases settle without trial and there is therefore no way of knowing whether those people would have received more or less money from a jury.  But the question that still needs to be answered is:  what should you do??

     There are a multitude of factors that will influence, in greater and lesser degrees, the decision to settle or go to trial.  I cannot possibly discuss all of them because many of the factors are UNIQUE to the individual case.  First and foremost, make sure you are in the hands of an experienced INJURY LAWYER!!  I have written about this before and cannot over emphasize that point!  If you have entrusted your loved one’s injury or death claim to your local “jack of all trades” lawyer, you may be in trouble.  Before I saw the light and started helping victims many years ago, I too was a “dark side” injury defense lawyer, and a very good one I may add.  Injury trial work is all I have ever done, and as a defense lawyer, it became very apparent very quickly whether the injured person’s lawyer really knew what he or she was doing.  And when they didn’t, the case was settled  for less than it was worth or often lost by the victim at trial,  all to the very obvious detriment of the victim or her family.  Enough said about this factor.  CHOOSE THE RIGHT LAWYER!!!

     In terms of evaluating the settlement offer you received, your lawyer should be able to very quickly put that offer in perspective based upon her personal experience in prior cases, the experience of her firm, and the reported outcomes from other cases for similar types of accidents and injury.  There is a company in Chicago that regularly publishes the results of settlements and trials and it strongly encourages all lawyers to submit to them the information on cases they settle or try and the outcomes.  Other lawyers are able to review that data and it certainly can add some light on your own settlement offer.

      One obvious factor that bears on your settlement is where your case is pending.  Unfortunately, the reality is that the exact same accident and injury case has potentially differing values depending on where it is pending.  Some county juries are just more conservative in their verdicts than other counties.  That fact alone will have substantial bearing on the size of your settlement offer and whether you should take it.

     The reality is that there is no exact dollar value for any particular case other than what both sides will agree to.   Prior to that point, as we tell our clients, every case has a settlement “range.”  When my clients receive a settlement offer, it is my solemn duty to let them know whether the offer is, first off, even in the “range” and if so, whether it is at the low end, middle or high end.  Whether my client wants to accept the money is a decision that they  make, not me.  Some clients for their own reason may want to accept an offer even if it is in the low range.  I of course tell them that I should be able to get them more at some later date, but it is their decision and theirs alone to make.  And obviously a case that is truly worth, say, $75,000, may be worth $65,000 to one of my clients today, knowing that it may take another 6-12  months to get the defense insurance company  up to the “true” value of $75,000. 

     One of the most important considerations to keep in mind is to try and have a confident feeling that the insurance company has offered all the money that it intends to.  I always tell my client that this is a very valuable fact to know that the insurance company will not voluntarily agree to pay any more money.  It makes my job easier because I can immediately (usually) advise my client on the relative merits of the offer and what can be reasonably expected if they reject it.  Your lawyer will be able (should be able!!)to make a pretty solid assessment of where the insurance company has drawn the line so to speak.  Some defense lawyers I have worked with will come right out and tell me that what they have offered is the last dollar available.   If we want more, then we will have to try the case and try and convince the jury to give us more.  Of course, the jury will NEVER KNOW that you were ever even were offered money before trial, and therein lies the risk of going to trial.  Juries are forbidden from knowing anything about settlement negotiations that went on before trial!  The last thing I ever want to happen to one of my clients is to turn down  reasonable settlement money, go to trial and get less, and yet the jury thinks that they were very generous in their award.  This has happened I would imagine to every personal injury lawyer at least once, and it is not much fun.  To see the look of disappointment on your client’s face, and then to go talk to the jury and see the excitement on their faces that they believe you should be so happy with what they did! 

     When the settlement offer is in the “range” of what is appropriate for your case, your lawyer’s job is to tell you whether it is a good offer, a terrible offer or a great offer.  Then you can decide whether to wait awhile and see if they will offer more or go to trial.  When you firmly believe that the settlement offer will never go higher, and if it is in at least the “good” range or higher, then taking the money is most likely the right decision.  Certainly, if it is a “terrible offer” or one at the very lowest end of the “range” of settlement, then there may be a compelling reason to push forward and go to trial.  What your lawyer will (SHOULD!!) explain to you if you decide to reject a reasonable settlement offer, is how long it will take to get to trial and the anticipated additional expenses that will be incurred in trying the case.  Certainly, if you think the settlement offer is $10,000.00 too low, yet you are 18 months in time and $15,000 in litigation expenses away from getting to trial, you may want to rethink your decision.  If the jury awards you exactly what you thought your case was worth ( whatever the offer was plus the additional $10,000 you thought the insurance company should have offered), your lawyer will take whatever their fee is, usually one-third, plus the expenses, and you end with less than if you had taken the offer 18 months earlier.  Be reasonable and rationale in your decision making.  Do not let anger, frustration or strong emotions make your decision for you.  Yes, the defendant is wrong and hurt you.  Now, focus on the offer and listen carefully to your very experienced personal injury lawyer.  Although you want a pound of flesh from the person or company that injured or killed you or a loved one, all the law can do is get you money.  Revenge is not part of this negotiation.

     Another point to make, and it is my last one, is to carefully gauge your lawyer’s attitude about the amount of the settlement offer and how hard your lawyer is trying to convince you to accept it or reject it.  It is at that point (actually always!) that your lawyer should be acting with a great deal of professionalism and diplomacy and thoroughly explaining to your complete satisfaction why the settlement offer is reasonable or not and what you can likely expect if you reject the offer and proceed forward.  If your lawyer is suggesting that the offer is at the low end of the range, yet pushing you hard to accept it, I would think that should send up a red flag absent some compelling explanation as to why.  I certainly have clients that accept settlement sums in the “low” end of the range, but that is their decision, not mine.  If an offer is good or better, and my client seems to think that their case is worth a lot more,  I will spend as much time as it takes to explain the strengths and weaknesses of their case and what can be reasonably expected if they reject the offer and push to trial. 

     Here’s hoping that the insurance company is offering you some money, and that it is fair and reasonable.  We are here to help.  Good luck!