|
Will My Case Likely Settle?
There
are many factors which will determine whether your personal
injury case will settle, or whether you will have to proceed
to trial. Probably the most significant of these factors is
the type of personal injury case involved. Generally, the more
sophisticated issues and cases do not resolve early in the process
of litigation. Most automobile accident cases do settle without
the need for a trial.
Medical malpractice cases, products liability cases and premises
liability cases usually do not settle early on in the process
and may very well require a trial to determine the outcome.
In medical malpractice cases in particular, if a doctor settles
a case, he gets reported to a national databank. Each time
he renews his insurance or if he seeks credentialing with
a hospital, a report from the databank is received. Thus,
the databank report follows him throughout his career. This
makes it less likely that he will want to ever settle a case.
Some insurance agreements have what is called a "consent
to settle clause." This clause allows the person who
is insured to determine whether or not the case will settle.
If such a clause is in the insurance contract, the insurance
company cannot settle the case even if they really want to
settle without the consent of the insured. These clauses are
especially prevalent in medical malpractice insurance agreements.
In cases involving complex factual or legal issues, it may
take a long time for depositions, expert reviews and documents
to be exchanged and evaluated by the parties. Without an adequate
understanding of the issues and the potential testimony at
trial, the parties do not have enough information to evaluate
their chance of success and thus, their willingness to settle.
Although cases involving complex factual and legal issues
may settle on the "courthouse steps," it could take
years to get to that point.
Sometimes, a legal issue may have to be decided by the court
to help the parties determine whether certain evidence can
be presented at trial. There may also be certain laws which
limit certain types of claims, even if those claims appear
to be a clear winner for one side. Until a court decides these
legal issues, the parties cannot evaluate their exposure in
the case.
Even if the parties agree about who was at fault in a case,
the case may not settle due to a dispute over the amount of
damages sustained by the plaintiff. Cases often proceed to
trial on the sole issue of damages. Thus, most lawyers will
work the case as if it will proceed to trial and hope that
their work will enlighten the other side about the need to
settle the case. If the case does not settle, that lawyer
is then ultimately prepared to try a good case with the best
potential for a favorable outcome.
Statistically speaking, most cases settle before trial. However,
it could take years to develop enough facts and legal issues
to convince the parties of the need to settle the case. Thus,
it would not be a good idea to count on a quick settlement
in any case.
|
