Personal Injury Claim: Should You Settle Or Go To Trial:? What You Must Know By Rex Bush At Isnare.com Ezine Articles

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 personal 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 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 case much like the client's. 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.

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