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When To Settle vs. Going To Trial

January 27, 2022
Personal Injury Law Tips

When I am first meeting a victim of a car or motorcycle crash, they often ask about “the trial.” In their minds, they imagine me standing in front of a jury and asking for a big sum of money to cover all of their medical bills, lost wages, pain and suffering, and future medical expenses. But, to be quite honest, most personal injury cases in Denver never go to trial. They are settled with the at-fault driver’s insurance company.

That said, I approach every single case as though it will go to trial because that lets the insurance company know that they’d better play fair and make a legitimate offer to my client, or we will go all the way. (This is not something that personal injury mills do.)

The Phases of a Personal Injury Case

Medical Care for My Client

In the initial phase of a personal injury case, my job as a Denver personal injury attorney is to make sure that my client is receiving all of the care that he or she needs. This may seem like it’s outside of my purview: “Isn’t their healthcare their own business?” But it’s not. If my goal is to help my client receive – and pay for – all of the care that he or she needs, then I need to help them understand what they are facing medically, whom to ask for help, and how their condition may progress.

Most people have never faced catastrophic injury, thank goodness. However, I see it all the time. I understand that most victims will require more care than they can comprehend in the days and weeks following their car or motorcycle crash. If I am going to help them pay for all the care they will need by getting them a proper settlement, I must proactively help them get the proper diagnoses and care from doctors so that those estimates and bills end up in the final settlement.

Investigating the Case

Next, as the patient is taking care of him- or herself, I begin building the case against the at-fault driver and their insurance company. This is like the forensics piece of my job because it can be quite a mystery and a hunt to find all of the “buckets” of funding that my clients may have available to them. (This article shares a few of the ways a good attorney can find sources of funding that clients may never know they can access.) Also, insurance companies actively try to subvert efforts to discover their responsibility. This can be a painstaking process, but I am tenacious in my efforts to uncover every “bucket” available to my client.

Simultaneously, I must begin to understand my client’s ongoing and future medical costs, ongoing and future lost wages, property damage and any other losses he or she has or will experience as a result of the accident. This may involve talking to medical experts, analyzing the victim’s job projecting his or her future wages, and much more.

Decision Time

Finally, we present all of these findings to the insurance company. Our expectation is that they will see our rock-solid case and make a reasonable offer to our client. For example, if they offer the maximum allowable, we advise our clients to settle because there is only the very slightest chance that they can get more from the case by moving to trial. Cases settle with a fair offer about 90% of the time, which is why it is rare for cases to go to trial.

However, in the 10% of cases where we believe our client is not being adequately compensated, we present our client with the option to sue. We meet with the client and lay out their entire case and we explain what the litigation process looks like from start to finish. But again, this process rarely proceeds to trial.

Here’s why: If a client decides to sue an insurance company, the next step involves several months of depositions and expert analysis of the crash. This is where our due diligence from the very beginning of the case comes in very handy. When the trial is drawing near, we provide the defendant – the insurance company – with one last chance to settle. Usually, at this stage, we have presented such a strong case that the insurance company finally offers an amount that we cannot guarantee the client would receive at trial.

When we get that offer, it is entirely the client’s decision whether to take the offer, knowing the risks that they may face at trial.

How Do Victims Typically Fare at Trial?

We analyze jury trials of personal injury cases all of the time, even though a rare percentage of cases end up at trial. This intel helps us prepare our cases better and advise our clients better.

We have found over and over again that about 60% of victims win at trial, which sounds like good odds. However, with these wins, victims usually win only slightly more than what the insurance company’s last offer was. It’s typically not a substantial amount. Additionally, taking the client’s case to trial costs more than settling. Think of the expert witnesses alone, who typically charge at least $6,000 to serve and testify on a case. Those costs come out of the client’s final settlement.

Even more challenging are some trial rules that limit how much a lawyer can say to a jury. For example, a jury is never allowed to know what the insurance company’s final offer was. Therefore, a jury could come in below what an insurance company offered. Also, the jury isn’t allowed to know that there is an insurance company involved in the case at all! This makes the jury believe, for example, that my client may be using the little old lady who hit him for $500,000, which they may imagine would leave her homeless. In reality, she paid for her insurance and won’t lose a dime when her insurance pays out. But because the jury never knows this fact, they may try to protect the little old lady by handing down a lower amount in their decision.

In the end, it’s best for the client if their case is settled early with a fair offer from the insurance company.

If you have any questions about this process, call or text me at (303) 388-5304.

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