- AuthorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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Personal injury cases can end in settlement or trial. More than 90 percent of accident cases resolve by settlement, and for good reason. Going to trial is risky, and its outcome is uncertain.
So why is settlement preferred in personal injury cases?
Advantages of Settling Your Personal Injury Case
- Your money is guaranteed, plus you will receive your money in a matter of weeks rather than months. Remember, most first-time cases get postponed for many months due to the lack of available courtrooms.
- A personal injury trial is highly costly. There are increased legal fees, court costs, expert fees, exhibits, and last-minute deposition costs to consider – to name just a few.
- By settling your case, you can manage the risk of loss against the potential to receive a more favorable recovery.
This article covers some of the major factors leading to the unpredictability of going to trial in personal injury cases.
Personal Injury Trials Are Unperdictable
Cases That Don’t Settle Proceed To Trial
A personal injury trial is a fluid and uncertain process. It requires an enormous amount of preparation and is usually cost-prohibitive.
Trial requires enormous amounts of additional preparation, is time-consuming, extremely stressful, and places your lawyer at considerable financial risk.
As a client, choosing to proceed to trial is your choice, not your lawyer’s, notwithstanding what lawyers may tell you. So, as a client, get ready to witness a marked change in your lawyer’s personality as they go from a casual demeanor in the early phases of a case to a focused, determined, and no-nonsense demeanor the closer your trial date approaches.
Preparing For Trial
Your personal injury lawyer will have worked many hours preparing your case for trial, including incurring additional costs.
Getting ready for trial includes
- Preparing all exhibits and witness lists
- Attending lengthy consultations with experts
- Meeting with witnesses
- Researching remaining evidentiary issues
- Preparing and opposing evidentiary motions
- Researching and drafting the plaintiff’s pretrial motions
- Researching and drafting the opposition’s pretrial motions
- Preparing jury instructions
- Drafting specially prepared jury instructions
- Taking last-minute depositions
Cautioning The Client
Lawyers often caution their clients that trial is dynamic and unpredictable. There are no guaranteed winners or losers in this game.
Witnesses can back out, judges can make bad rulings, and jurors can be biased and unfaithful to their oath.
Your lawyer will advise you on your settlement options and the risk factors to consider going to trial.
Your lawyer will likely propose mediating your personal injury. Depending on your case, this might be a good option for you to consider.
There is also the option of binding arbitration, which a retired judge usually conducts.
Power of The Judge
Trial judges have broad discretionary powers in managing the case. They enforce the rules of evidence and civil procedure. But judges also have their own personal and political biases that can shape their rulings for or against a particular party, even though you will never find a judge to admit it.
The danger is that it is common for a jury to take their cue from a trial judge who might express favor for one side or the other. While most judges can demonstrate restraint and repress such dispositions, some cannot.
Appellate Courts Oversee Trial Court
No judge wants to have their ruling reversed at the appellate level. Appellate courts can rule against a trial court’s judicial errors, acting as a check against its rulings when they lack a legitimate judicial purpose.
Disqualifying A Judge Without Cause
In many states, including California and New York, each attorney gets one discretionary opportunity to disqualify a trial judge based on a perceived bias without having to prove the bias.
Disqualifying A Judge for Cause
This type of disqualification allows an attorney to claim that the judge assigned to hear the matter is unfavorably biased against the case, the parties to the suit, or the attorney hired to represent them. Challenging a judge for cause is usually based on a demonstrable conflict of interest.
The Jury System
In the final analysis, despite what most people believe, judges can and sometimes do impose their personal biases into a case, which is why the jury system is so valuable to our justice system.
It is based on the belief that it is less likely that 12 minds will be biased in the same way that one person can, even if that person is the trial judge.
The Risk of Paying Costs
The expenses of prosecuting or defending a personal injury lawsuit include what are called litigation costs. The types of costs that are considered reimbursable costs depend on state law.
Litigation costs can include:
- Court filing fees
- Court reporter fees
- Jury fees
- Copying fees
- Expert fees
- Travel and lodging
- Exhibit costs
- Investigator fees
- Witness fees
- Process server fees
Unless a binding contract provides otherwise, most states require the losing party to pay the prevailing side’s costs. This does not include attorney fees.
Depending on the case size, its complexity, and how long the trial takes to try, costs can exceed a hundred thousand dollars or more.
Payment of Costs Are Negotiable
In attorney-client contingency fee agreements, the client is often obligated to pay for costs advanced by the attorney, irrespective of who wins or loses.
Remember, however, that the payment of costs, like most conditions and terms in a contingency fee agreement, is entirely negotiable between the parties.
Paying The Other Side’s Costs
Statutory Offer to Compromise
The purpose of statutory offers to compromise is to incentivize settlement between the parties before trial. Here is how it works:
In states like California, the plaintiff or the defense can make a statutory offer to settle the case, which under California law falls under C.C.P. Section 998.
Under this statute, if the plaintiff makes a pretrial offer to settle with the defendant for a specific amount and the offer is not accepted by the defendant, should the matter be tried and the verdict amount exceeds the amount of the plaintiff’s proposed offer, the defense is legally obligated to pay the defendant’s costs.
Statutory offer also works in reverse:
Suppose the defense makes a specific offer to the plaintiff to settle the case, and the plaintiff does not accept the offer. Should the verdict be less than the defense’s offer, the plaintiff is legally obligated to pay the defendant’s costs.
Paying For The Other Side’s Attorney Fees
Unless otherwise agreed to by contract, most states follow what’s called the American Rule, which states that each side pays their own attorney irrespective of wins or losses.
Consult A Personal Injury Lawyer
If you have specific questions or require additional information about your legal rights and obligations, consult with a verified Personal Injury Lawyer as soon as possible.
