Personal Injury Lawsuits & Litigation
Settle or Go To Trial with Your Personal Injury Case?
By Rex Bush, Attorney at Law
A very important recent study has shown that, for plaintiffs i.e. the person who files the claim, settling is better than going to trial.
The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant s offer to be half a loaf when in fact it is an entire loaf or more, said Randall L. Kiser, a co author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.
Most of the plaintiffs who said no way to the final settlement offer and went to trial ended up getting less money.
Only 15 percent of the time were both sides correct in proceeding to trial. In the other 85 it was the plaintiff who was wrong the most: in 61 of cases. Defendants were incorrect in proceeding to trial just 24 of the time.
Many practicing attorneys will concur with these findings. We've all seen cases where the injury plaintiff should have settled but did not and ended up worse at trial. It s like the Kenny Rogers song: you have to know when to hold them, when to fold them, when to walk away and when to run, says Utah injury attorney William Morrison.
According to informed estimates most court cases do settle before trial (these estimates range between 80 and 92 .)
Kiser s study was based on 2054 cases that went to trial between 2002 and 2005. The study, which was published in the September issue of the Journal of Empirical Legal Studies, suggests that mistakes were made most often in cases where the injury lawyer was paid a contingency fee.
Of interest, is the relative cost for getting it wrong. When defendants are wrong, it costs them an extra $1.1 million. However, when plaintiffs are wrong they are penalized a mere $43,000.
As a practicing attorney, I can say that these numbers are probably high when compared to Utah verdicts as our juries number among some of the more conservative in the country.
Jeffrey J. Rachlinski, a law professor at Cornell, believes most of the time one of the parties has made some kind of miscalculation or mistake.
Most clients think they are completely right, Michael Shepard, a lawyer at Heller Ehrman in San Francisco.
After representing injured persons for 20 years here in Utah I've found that the following technique aids greatly to assist the client to make the right decision about whether to settle or try the case.
I ask the client to imagine being a juror along with seven others from the county where the accident took place. The jurors are registered voters in the county. They are deciding a personal injury law case much like the clients. The injuries are the same, as is the treatment, the amount of the medical bills and the lost income.
Here's the question I pose: What would you and the other jury members award that hypothetical person?
In nearly every case where I have done this, the client has come up with a case valuation number that is very close to what a jury would likely award. And, if the final offer from the other side is at or above that number then it s time to settle.
Should You Hire a Personal Injury Attorney or Lawyer?
By Rex Bush, Attorney at Law
Should you use a realtor when you sell your home? Should you use an appraiser to value your home? Should you use a title company when it comes time to have the transaction closed?
Let's say you want to sell your home that you bought 40 years ago for $10,000.00. Someone offers you $35,000.00, you decide to sell because it sounds to you like a good offer. In reality, your home is worth $60,000.00 and you just gave up $25,000.00 because you took what sounded good, and not what it was worth based on current market values.
If you had consulted an appraiser he would have told you that your home was worth $60,000.00. Perhaps then you would have made the decision not to sell.
Let me give you a personal injury example. You re injured in a car car accident. The day after the accident you re contacted by the other party's insurance carrier. They offer you $2,000.00 for your pain and suffering. That sounds like a good offer, so you take the $2,000.00 and sign all the releases.
Two weeks later your neck is really hurting you. You spend the $2,000.00 plus an additional $2,000.00 to get treatment for your badly injured neck.
The value of an attorney to personal injury claimants was conceded by a noted critic of personal injury attorneys. In his book The Injury Industry and the Remedy of No Fault Insurance Jeffery O Connell stated the following:
"Studies tend to show that hiring an attorney not only increases the chance and amount of payment but leaves more net payment for the claimant even after deducting his attorney's fee."
According to one statistical study conducted at the Columbia Law School, `the claimant who retains an attorney improves his chances of recovery; and, in addition, `the increment to the victim who retains an attorney is large enough so that, even after the attorney's fee is deducted, he will net more than if he had handled the case himself.
Insurance companies seem willing to pay claimants, when they retain attorneys, a sufficient increment to more than cover the attorney's cost. In other words, in the tough test of the marketplace, the contingent fee seems to prove its worth.
Additional support is found in a 1994 study by the Insurance Research Council which shows that, on average, claims resolved without an attorney settled for $9,000 less. According to that study the average settlement when no lawyer was involved was $3,262.00 compared to $11,939.00 when a lawyer handled the case. The difference: $8,677.00. A little arithmetic shows that, after deducting a typical contingency fee and some costs the represented party made out better much better.
Another reason to hire a lawyer on your personal injury lawsuit: stress reduction. Without the pressure of self representation you are likely to heal up much faster.
And, finally, you could make a mistake and screw up the case and end up with far less than you deserve.
Be wise, make sure you have competent legal counsel to represent you in your personal injury claim.
Author Resource:Rex Bush is founder of Bush Law Firm near Salt Lake City, Utah where he handles personal injury cases in Utah and throughout the United States and Canada. For information on personal injury issues visit his website: http://www.utah-personal-injury-attorney.com
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