Personal Injury Law: How To Determine Whether Your Personal Injury Case Will Go To Trial

Personal Injury Law: How To Determine Whether Your Personal Injury Case Will Go To Trial

>> How many personal injury trials proceed to trial?

>> Multiple stages of personal injury trial

>> Different attorneys for different stages of trial

>> When to accept an offer or file a complaint

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Dan Drucker* For many people involved in personal injury claims they believe the outcome of a claim will go one of two ways: a settlement check from the insurance company, or a trial. The insurance company would like you to believe that you either need to accept the first offer that you get for a settlement, or your next option is to go through an entire court case.

Luckily, this is not true. In fact, less than 5 per cent of all personal injury cases end up going through an entire trial, and about half of all personal injury cases don’t even require any litigation whatsoever. 

Consider too that there are a vast number of personal injury claims filed, just as the number of personal injuries in the United States is massive. The National Center for Health Statistics shows that over 39 million people visit doctors for unintentional injuries with almost 170,000 unintentional deaths. While almost 40,000 deaths are from auto accidents, there are also over 36,000 people dying from unintentional falls.

It is clear that the number of personal injury claims is correspondingly high – and growing – and the question of just how such claims proceed to trial is therefore of paramount concern to litigants.

Multiple States of Personal Injury Trial

There are multiple stages in any personal injury trial. Frequently the court will encourage litigants to do everything possible to settle their claim privately. This may involve engaging in multiple efforts to explore options, including entering mediation with the defendant.

A mediation initiative will involve a neutral party attempting to resolve the matter through a mutually-agreeable resolution, moving the parties towards agreement.

It is also important to recognize that just because a case is a settlement before litigation does NOT mean that it ended favorably for the victim, which is why you want to work with a personal injury attorneys who have experience in handling cases of this nature.

And the signficant range of personal injuries cases, such as those handled by the firm has seen everything from trials or settlements in cases ranging from premises liability claims to civil rights, trucking and medical malpractice claims.

There is virtually no limit to the injury claims that can be brought.

The Beginning of a Personal Injury Case

After you have been involved in an accident and need to file a claim with an insurance company, it is wise to think of this as the start of your personal injury case. It is a common mistake to think that you should wait to hire a lawyer until after the insurance company has made an offer, but by hiring an attorney as soon as, or even before, you initiate a claim will be a major benefit for you.

Your attorney will be able to advise you throughout the claims investigation on the types of statements that you should or should not make, and how to handle yourself during things like an independent medical examination that the insurance company might mandate for you.

At the same time, your lawyer will be building a body of evidence to make a counter-offer once your first settlement offer comes through. 

Accept an Offer, or File a Complaint?

As negotiations continue, you and your attorney will be able to discuss things such as the reality of a settlement agreement, and the plan for if you need to take further legal action.

In larger personal injury claims a defense attorney may not be willing to discuss settlement options until the plaintiff lawyers have outlined their case and their experts in some detail. That requires significant groundwork and some considerable expertise in the manner in which such often delicate strategy is handled.

In smaller injury cases, especially when the lawyers know each other, they may just speak on the phone to discuss settlement options. The plaintiff’s lawyer may or may not write an actual demand letter. The defense attorney may or may not respond with a counteroffer and if they think that the demand was too high, he/she may simply ignore the demand or may say that the demand is too high and that the insurer will not make a counteroffer.

If the defense does make a counteroffer, then the bargaining begins. Sometimes the lawyers can settle it, sometimes not. If they can’t settle, they will likely go to mediation.

If negotiations fail, then your attorney will file an official complaint. However, this still does not mean that you will go to trial. In fact, there are many months of preparation before a trial, during which time it is very likely that a deal will be reached. 

In order to give yourself the best chance of avoiding a trial while also maximizing your settlement amount after an accident is by working with the right lawyer. When you have strong legal representation, every step will be taken with the intention of getting you what you deserve as quickly as possible. 

Preparing for Trial

If your case is going to trial, then you will want to work with an experienced trial lawyer who is able to handle all the necessary pretrial investigation work – discovery – and will use various tools like interrogatories and depositions.

These processes can involve attorneys with different skills and insurance companies will rarely want to commence any serious settlement discussion until all the necessary facts are ‘on the table’.

In many cases, a trial lawyer differs from a defense lawyer because trial lawyers focus specifically on helping clients get through the trial process.

Since so few cases ultimately end up in trial, or even in court at all, it makes sense for attorneys to focus on processes before trials, such as defense or personal injury, and then other lawyers to focus specifically on helping clients navigate the trial process. 

In bigger or more complex cases, defense attorneys are generally not willing to talk seriously about settlement until after the plaintiff’s lawyer has identified the plaintiff’s expert witnesses that might be called in any trial. They want to wait until the plaintiff’s lawyer has done all the work necessary to bring the case to trial.

If you think that your case is heading to court, whether or not you know that it will go to trial, it will always be in your best interest to start considering hiring an experienced and dedicated trial lawyer. Depending on the situation, your trial lawyer may be able to work alongside your personal injury lawyer in order to give your case the maximum boost and chance of getting the money that you deserve.

*Author – Dan Drucker writes on personal injury and consumer law rights

Seay Felton LLC
Location: Atlanta, GA

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