The vast majority of Florida personal injury lawsuits – whether they stem from car accidents, slip-and-falls, medical malpractice, or product liability – will be settled before they go to trial. This is because trials are expensive, arduous, drawn-out affairs that are a gamble for both sides. That doesn’t mean it’s always a good idea to settle and never a good idea to go to court. However, it does mean that you should be in regular communication with your lawyer, carefully weighing all the options on the table in your Palm Beach personal injury lawsuit.
Understanding what recourse you have, the viability and value of your claim, is essential to making wise decisions. To do that, you must have an experienced personal injury lawyer – one who is prepared and capable of taking your case to trial if it comes down to it.
The primary reason to take a case to trial instead of settle is when the defendant and/or insurer refuses to pay fair compensation for your losses.
What Exactly is a Settlement?
A settlement in a Florida personal injury case is when you decide to settle your claim outside of court. This can happen at any time in the process. It can happen before you even file a lawsuit. It can happen shortly after you file. It can happen just before a trial is slated to begin. It can occur during a trial, prior to a verdict. In some cases, it may even occur after a trial in order to avoid going through an appeals process.
Settlements give both parties some degree of control over the outcome. Trials are risky. In fact, if one side offers a settlement and the other rejects but then fails to prevail at trial within a certain percentage of that original settlement offer, the side that declined could be compelled to pay the other’s attorney’s fees, pursuant to F.S. 768.79. This is where attorney experience matters because you really need someone who has a very good idea of what your claim is really worth.
To start off with a settlement agreement, your attorney will send a demand letter to the defendant’s insurer, detailing the full extent of your damages and the legal argument supporting that demand. Copies of documents such as medical bills, police records, witness statements, photographs, video evidence, etc. can be submitted as evidence. From there, the defendant counsel will respond, in some cases making a counteroffer. This is where negotiations begin.
Your attorney may have numerous back-and-forth phone calls, emails, and mail correspondence with the defense. It’s during these, and sometimes within the pre-trial hearings, that minor issues get resolved and both sides get a clearer picture of the other’s case.
Some claims proceed to the discovery phase, but lots of times, the case is resolved through a settlement before that. If the case does make it to the discovery phase, that’s when both sides begin presenting all the evidence they have, expert witness affidavits, the legal theories they’ll be arguing at court, proof of significant, ongoing damages, etc. You may be asked to submit to a medical exam by one of their experts, and both sides can depose witnesses. Insurers may wait until this phase to make a serious settlement offer because it’s here they get a sense of how strong your case really is.
If a settlement agreement is reached, both sides will sign a formal settlement agreement, compelling the defense to pay a certain sum that will in turn release the defense from any and all liability related to the case. Some (but not all) personal injury settlement agreements are accompanied by confidentiality clauses that limit what you can say about the case thereafter.
If there are multiple defendants, negotiations may continue with the others separately. If you settle with Party A and proceed to trial with Party B, you will not be able to collect further damages from Party A, even if the court assigns them some degree of liability for what happened.
What’s the Trial Process in Florida Personal Injury Cases?
Claims can take several months or years to make it to the trial phase, depending on how complex the case is. Cases may be bifurcated into two parts: Liability (who is legally responsible for what happened, and to what degree) and damages (how much you should be paid).
In a trial, there will be a jury, opening statements, witness testimony, cross examination, closing arguments, jury instruction, jury deliberation, and verdict. Trials can last a few hours or they could last weeks. Regardless, all trials require significant levels of experience and preparation. If you’re considering taking a case to trial, be sure the attorney with whom you’re working has a track record of success in prior injury law trials.
How Do I Know if I Should Settle or Go to Trial?
This is a question that can really only be answered on a case-by-case basis after careful analysis of the facts. In general, some things to keep in mind:
- Settlements lead to much faster resolutions – on average, 3-6 months. Trials can take much, much longer. Settlements cost less, are more efficient, and often less stressful.
- You may be accepting less in a settlement than you might be awarded in a trial. Defendant insurers may settle not only because they want to circumvent the time and expense of a trial, but also because there’s a decent chance they’d be compelled to pay more at trial. Your attorney should help you decide if settling now is smarter than pursuing the additional time and expense of a trial for a potentially larger payout.
- You have more control in a settlement. You can accept or decline offers. You can make counter offers. If you take a case to trial, you’re agreeing to accept whatever the court deems is fair.
- Settlements are permanent. No matter what comes to light after the ink has dried on your deal – even if you learn your injuries are much worse than you realized initially – you can’t go back and renegotiate for more. That’s why it’s so important to work with an attorney with experience who recognizes what your case is worth and what it takes to prove it.
- Trial outcomes are public. While you may be compelled to sign non-disclosure agreements and keep your settlement confidential, trials are public matters. Whatever happens will be an open book for the public. That can be good or bad, depending on your perspective, but it’s something to bear in mind.
Sometimes it makes sense to go to trial. More often, it makes sense to settle instead. But that is not a decision you should reach lightly without careful consideration and consultation with your attorney.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
768.79 Offer of judgment and demand for judgment
More Blog Entries:
Palm Beach Injury Lawyers on Attorney-Client Privilege: Definitions, Limitations & Protections, April 30, 2021, Palm Beach Medical Malpractice Lawyer Blog