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How Will I Know When It Makes Sense to Settle or File a Lawsuit?

Posted by Benjamin P. Melnick | Oct 21, 2019 | 0 Comments

Bpm.settle.vs.sue

Settling a personal injury case at the right time and for the right amount is a probably the most common and the most difficult question we deal with as personal injury attorneys. We try to minimize risk to our clients, and maximize the damages they can collect. The way we conceptualize that is a seemingly backwards analysis: start with the end and work our way toward the present.

The short answer for when to file is, hopefully, when your attorney recommends it. As personal injury attorneys, we use our experience to get a sense for the value of a case. Usually, if the offer from the adverse insurance carrier is not good enough, we will recommend filing.[1] If you want to read about some of the factors we consider when making that recommendation, read on.

The beginning of the analysis is the end of the case, chronologically. The only way to truly decide the value of a personal injury case is to ask a jury to determine the issues and damages in a trial. Jury trials can be expensive, unpredictable, and time-consuming for all the parties involved. The parties consider expert witness fees, costs to present the trial, the possibility of a large or small verdict, the potential jury pool that would be deciding the case, and the judge presiding, among other factors.

The defense attorney's abilities, recommendations to the insurance carrier, the insurance adjuster, and the carrier he or she works for are also important factors. There are some carries that are notoriously tight with paying claims, and there are others that are more reasonable to deal with.  Similarly, some counties are believed to have jury pools who are less inclined to award significant sums for noneconomic damages, and judges who may make certain decisions that result in the case being more difficult to prove for the plaintiff. 

What does any of this have to do with filing a lawsuit?

Stripped down to its core, a personal injury case is—in many respects—about trying to collect damages for the harms and losses caused by another's wrongful conduct. The damages are a function of the strength of the liability, the medical bills reasonably incurred to treat injuries associated with the case, and the impact the injuries have had on our clients' quality of life.

Over time, we develop a sense for what we might expect a jury, judge, or arbitrator to award, balancing the costs and risks of seeing the case through all the way. Based on that assessment, we compare the costs of litigation and discovery against any offer we have received from the adverse insurance carrier, the likelihood of an improved offer after discovery, our clients' willingness to, and the advisability of, seeking damages above any improved post-filing offers. There is also the factor of any reimbursement obligations to PIP, Health Insurance, Worker's Compensation, or other potential lienholder. Of course, we are hoping to meet client expectations, and we make sure to have client approval before settling a case.

Ultimately, through our experience, we can make recommendations about whether the offer on the table is a good one, if we feel it could be improved through litigation, or if it is an appropriate case to submit to a jury trial. Above all, our aim is to arm our clients with enough knowledge that, even if they go against our recommendations, they understand the consequences of their decision.

[1] Please note that this analysis assumes the statute of limitations is not an issue for the case.  If the statute is bearing down on the case or the claim, filing is necessary to preserve the claim, and we ask that our clients sign an authorization allowing us to exercise discretion to protect the claim

About the Author

Benjamin P. Melnick

Ben Melnick joined the firm in 2018. He graduated from Washington State University with a Bachelor's degree in 2010, and went on to earn his Juris Doctorate from Gonzaga University School of Law. In 2016, he was named as the Clark County Bar Association's Rising Star. His practice focuses on personal injury, auto accidents, biking accidents, wrongful death, and insurance disputes. Outside work, Ben likes spend time with his wife outdoors—mostly running, hiking, and skiing—and playing soccer.

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