Most personal injury plaintiffs will be plagued by this question at some point during their lawsuit. Should you settle and take less than what you think your case is worth, or risk it all at trial?

The vast majority of plaintiffs will choose to settle — and for good reason. Jury verdicts are, at best, hard to predict.

Settlement — “A Bird in the Hand”

The downside of settlement is obvious to most plaintiffs — you get less money than you would get from your best possible trial outcome. From a defendant’s standpoint, though, this makes perfect sense. Why would a defendant settle with you for the most you could get at trial? That makes about as much sense as you agreeing to settle for $0.00 when there is a chance you could win at trial.

The upsides to settlement are numerous:

You get paid a lot sooner than if you have to wait for a trial date.

You no longer have to stress about your lawsuit.

The defendant can’t appeal a settlement. The defendant can appeal a judgment — which could easily tie up your money.

The benefits boil down to a guarantee of payment in the near future and a lifting of stress. Of course, this all depends upon you receiving a reasonable settlement, given your damages and chances of winning at trial. This begs the question of what your lawsuit is worth, which is the subject of another article.

Trial — The Grass is Greener

Many plaintiffs who settle their cases later experience buyer’s remorse about having had “their day in court.” Of course, this hindsight is viewed through rose-colored glasses. They quickly forget the stress that the uncertainty of their lawsuits injected into their lives. They become much more optimistic about what their chances were at trial. The risk of recovering nothing from their lawsuit is ignored now that the risk has been removed.

On the positive side, winning big at trial can be euphoric. You feel vindicated, relieved, and you act like you “knew you would win all along.” Holding an arrogant insurance company or major corporation accountable that refused to make you a decent settlement offer feels great. This brings me to the ultimate point of my article — trial should be reserved for those times when the defendant is totally unreasonable.

When You Should Choose Trial Over Settlement

Some cases just can’t be settled. Most often these will be cases that involve one of two issues. The first issue is liability. Liability refers to whether the defendant was negligent or committed some other tortious act. In normal non-lawyer English: the defendant did something wrong that was either negligent or intentionally reckless. If the defendant has an argument that he or she is not liable, the defense has a chance to win outright at trial and not have to pay you anything. Some cases, like slip and fall injuries can be hard to prove.

The second issue is causation. Did the defendant’s conduct, even if negligent, legally cause the injuries you claim? This can arise in many cases, such as those where the plaintiff had a pre-existing condition, the plaintiff was involved in multiple accidents or the plaintiff’s injuries could have been caused by an illness which naturally occurs in people who never had an accident. For example, insurance companies will point to studies that show just about everyone will at some point, have degeneration in their back or shoulders.

Cases involving liability and/or causation issues are particularly difficult to settle when the damages are large. If you have $1,000,000.00 in damages, but the defendant has a chance to pay you nothing at trial, coming to a consensus on a reasonable settlement figure may be impossible. From your standpoint, you can’t afford a low settlement offer due to medical bills, lost wages and the chance of being fully compensated with a win at trial. From the defendant’s standpoint, why pay a large settlement when it may not have to pay anything after trial? When the stakes are particularly high, even when the amount of damages (should you win) is not hotly contested, a win-it-all or lose-it-all case may be impossible to settle. These are the types of cases that really should be tried.

When Should You Settle?

In cases where liability and causation are not at issue (there are cases where defendants will admit these things before trial) and the only issue is the amount of your damages, the possibility for a fair settlement is much greater. When the defendant knows that it is going to have to pay something after trial, and the only issue is how much, the case should settle. These types of cases should not be tried unless the defendant is completely unreasonable in evaluating your damages. The good news for you is that should your defendant prove to be unreasonable, you have the benefit of going into trial knowing that you should win something, and you are really only gambling on the amount of the win.

Be Reasonable

Thankfully, most parties to lawsuits will act reasonably (at some point) when evaluating their odds of success at trial and the amount of damages at issue. This is why the majority of civil cases settle. As long as you are being reasonable, you should have no regrets about your decision, whether it be to settle or go trial.

Mediation is a formal settlement conference that usually presents you with the best chance to settle your personal injury lawsuit before trial.

This article will give you an overview of the mediation process and some advice on how to make the most of your mediation. Most plaintiffs are very nervous going into mediation — don’t be. There is no winner or loser at mediation. No issues affecting your lawsuit, aside from whether it settles, are decided at mediation. You will not have to “perform” at your mediation or answer questions, as you would in an IME or at a deposition. Your sole purpose at the mediation is to have the final word on whether your case settles.

Before Mediation – Meet With Your Lawyer

Most lawyers will have a meeting with their clients prior to mediation to discuss what mediation entails and to get authority to settle your case for a certain amount. It is important that your attorney knows your “bottom line” settlement number. Sometimes the attorney will have you sign a written authorization allowing him or her to accept any settlement offer at or above the amount you tell your attorney. This is to avoid any miscommunication about how much money you will settle for before negotiations begin at mediation.

When coming up with your settlement number, keep in mind that attorney’s fees, costs, and medical liens will have to be deducted from this amount. Your attorney should be able to provide you with fairly accurate numbers for all of these things to help you make your decision. Of course, if you just had an expensive medical treatment a day or two before your meeting, your attorney probably doesn’t have that bill yet.

Mediation – Who Will Be There?

At a minimum in any personal injury mediation, the people who will attend will be you, your lawyer, the defendant’s lawyer, a representative from the defendant’s insurance company (called an “adjuster”), and the mediator. You may be asking, why didn’t you list the defendant? Well, in most personal injury cases, the defendant doesn’t control how much money is offered to settle your case. The insurance company does. The defendant in the case may not even know of the scheduled mediation.

The point of mediation is to get the people who hold the “final authority” to settle the case together. On the plaintiff’s side, that will always be you (yes, you, not your lawyer, hold the final authority to settle your case).

On the defense side, the defendant’s insurance company almost always holds the final authority to settle by virtue of language in the insurance policy. There are some exceptions, such as medical malpractice cases, where doctors do not grant some insurance companies the ability to settle without the doctor’s consent (due to the effect that malpractice settlements can have on their medical licenses – and the medical “database”). However, in most ordinary negligence cases, such as car accidents and slip & fall incidents, the insurer has complete control over settlement negotiations.

The defendant has the right to attend the mediation, regardless of whether he or she holds the actual purse strings. It really depends on the personality of the defendant as to whether he or she will assist the mediation process or be an impediment. Basically, if the defendant wants the case to settle, he or she can help to put pressure on his or her insurance company to offer enough money to settle the case. If he or she does not want to settle, he or she can be a disruptive force who just serves to make mediation more difficult. Because you have no real control over whether the defendant shows up or not, there is no point worrying about it.

What is a Mediator?

A mediator is simply another lawyer who has no connection to either party in the lawsuit and no interest in the outcome of the lawsuit. The mediator must be agreed upon by both your attorney and opposing counsel (if the attorneys can’t agree on a mediator, the court will appoint one, which neither side generally wants).

Some lawyers are full-time mediators and no longer represent clients. Some still represent clients and can be either a plaintiff or defense attorney. Don’t worry if your mediator is also a defense attorney. He or she is not the defense attorney on your case, and he or she would not last long as a mediator if he or she showed bias towards the defense side. Some of the best mediators I have dealt with were also defense attorneys.

The role of the mediator is primarily to act as a buffer between the two parties during negotiations. Mediators are paid really well. Some are charging around $400/hour, and some charge even more. This bill is split between the parties, even if the case does not settle. However, attorneys are unlikely to use a mediator they can’t get cases settled with.

Mediation – The Place

Usually, the mediation will be held at the office of the mediator. Be sure you know where this is so you don’t get lost on mediation day. Write down the address and phone number of the mediator’s office somewhere safe so if you do get lost you can call the mediator and let them know. Nowadays, more and more mediations are being conducted by video-conference with Zoom. So, now you can even attend the mediation from your house!

Mediation – Before it Starts

If you arrive at the mediation before your attorney, it is okay to say hello and shake hands with the people from the defense side. Obviously, do not discuss your case. Limit your small talk as much as possible.

Most mediators already have the specific rooms assigned at the office, so the receptionist or the mediator will usually just walk you directly to the room. It’s fine to talk about the weather, but don’t talk about what you did the past weekend or discuss any other activities that may come back to haunt you. The mediator’s office should have drinks (water, soda, coffee, etc.) and some snacks. Feel free to ask for these while you wait.

Usually, about a week before, the mediator has received and reviewed a Mediation Statement from both sides. Your attorney will prepare this, and should give you a copy. From the plaintiff’s side, this looks similar to the demand letter, with the additional information that has occurred since then. This paperwork is not exchanged between the parties, and only goes to the mediator.

Mediation – The Joint Session

The “Joint Session” used to be commonplace, but it seems to rarely happen now. It really depends on the type of case, the mediator, and the parties involved. After everyone arrives and is settled in, the mediation will start. The first step (sometimes) in a mediation is referred to as the “joint session” (or “joint caucus”). Everyone involved in the mediation will be in the same room, usually seated at a large table in a conference room. The plaintiff and plaintiff’s attorney will sit on one side of the table and the defendant’s representatives will be on the other side. The mediator will generally sit at the head of the table.

If the parties do not agree on a join session (it sometimes just makes both sides dig in even farther), the mediation will go ahead and start with each party in separate rooms.

The mediator will open the mediation with some information about his or her background and qualifications and a description of the mediation process. The mediator will usually direct most of the introductory remarks to you, as it is likely that you are the only person in the room who has not heard a mediator’s opening speech dozens of times. Here are the key points the mediator will likely discuss in his or her opening statement:

Confidentiality

Everything that it said in the mediation is confidential and cannot be used in court. The defense attorney can’t cross-examine you at trial and ask “Didn’t you say at mediation . . .” However, should you reveal a new treating doctor or another witness at mediation, the defense can certainly find these people afterward and get information from them. A good rule of thumb is that while statements themselves can’t be used against you, the information in those statements may.

Impartiality

The mediator does not takes sides and will not give either side legal advice about their case.

The mediator’s job is not to determine a winner or loser, but merely to facilitate communication between the two sides and help the two sides reach a settlement. The mediator may play devil’s advocate while alone with each side in an attempt to help them see the other’s point of view. Different mediators have different schools of thought on this. At some point, the mediator may suggest a settlement number, while other mediators think they must act as a “true facilitator” and only communicate the different points of view between the parties, and let the parties come to a conclusion on their own.

Risk factors

The purpose of mediation is to allow each side to fully explore the risk factors that affect their case. This will be the only opportunity that each of the parties’ attorneys has to point out the risks facing the other side directly to the opposing party. Cases settle because it takes the “risk” out of going to trial. This risk goes both ways – it puts the case in the plaintiff’s and the defendant’s hands, instead of a judge and jury.

Compromise

In general, in order for a case to settle, each side will have to compromise. You will not get everything that you would get if you won at trial. The defendant does not expect you to walk out empty handed, either, as you would if you lost at trial. Somewhere between your “best day at trial” and your “worst day at trial” there hopefully lies a settlement figure both sides can live with.

The point of mediation is to see if both sides can agree on that number. One local OKC mediator we work with some will often say that “settling is mutual dissatisfaction.” If both sides are unhappy, than the mediator did his or her job.

Closure

If you settle your case at mediation today, you will get your money generally within a couple weeks to about a month. This usually depends on medical liens which need to be resolved. If you don’t settle your case at mediation, you could wait years before you get paid, assuming that you win at all. The stress of the lawsuit will be over, and you can get on with your life.

Control

At mediation, you control the outcome of your case. At trial, the judge and jury will. Jury trials are uncertain affairs under the best of circumstances. The same case tried before two different juries can have two completely different outcomes. In fact, this happens from time to time. For example, when a jury verdict is overturned on appeal and a case is re-tried before a different jury.

After the mediator is done with the opening statement, he or she will turn the floor over to the attorneys to give their statements, usually starting with the plaintiff’s attorney. Your attorney will summarize your case, highlighting the positives. If the case has already had negotiations, your attorney will generally summarize those as well. If the defense had previously made the last move, it will now be your side to make an offer.

If negotiations have not occurred, your starting offer number will be much higher than what you are willing to settle for, allowing plenty of room for negotiation during the mediation. Don’t get your hopes up based on this opening offer. The defense will come with a really low initial offer.

Next, the defense attorney will summarize the case to the mediator, and start with their initial offer.

Throughout the mediation, it may be helpful for you to have a pen and notepad ready to write anything down that jumps out at you as being false. You can discuss this later with your attorney. The mediation is just starting at this point — there is plenty of time to straighten out the facts later.

After each attorney has given their opening statement (and possibly a little rebuttal back and forth), you will move on to the next step of the mediation – settlement discussions.

Mediation – The Private Sessions

More and more mediations are skipping the joint session, and going directly to the private sessions. The parties are placed in separate rooms, where they will remain for the duration of the mediation.

Most mediations tend to have two major phases. The first is basically arguing over the facts, or value-driver’s in the case. The defense may make statements that the plaintiff had a prior wreck, or had surgery years ago, or some issue (real or unfounded) with the medical bills.  This phase is basically lining up what both sides can agree on, and what they disagree on. At some point, the mediation will go into the next phase and simply be about the dollar figures.

If your side made the first offer at mediation (which will usually be the case), the mediator will first meet with the defense side to get a counter-offer. While you are alone with your own attorney, you can discuss anything you want about defense counsel’s opening statement (assuming one was given), or what the mediator has said about your case from the defendant’s point of view. Your lawyer can then use this information when the time comes to make another settlement offer.

During the private sessions, the mediator will go back and forth between rooms, relaying settlement offers and other information between the parties. This process seems simple, but will often last a very long time. Most of your time at mediation will be spent waiting for the defendant’s next settlement offer. They seem to almost always take longer to come up with an offer than you and your attorney. This is partly due to insurance adjusters having to call their supervisors during the mediation and get authorization for certain offers. Their side is more of a committee making decisions, and there will often be internal disagreements as to how to proceed. On your side, it’s just you and your attorney — and most of the time you two have worked out before the mediation what your “bottom line” settlement number is, and you leave the negotiating part to your lawyer to meet or exceed that number.

It may sound trivial, but one of the best pieces of advice I can offer personal injury plaintiffs before mediation is to bring something with them to do. Bring a magazine, a book, a video game, something to occupy you for hours when you would otherwise be sitting around fidgeting. Also, if you are picky, bring your own snacks, just in case the mediator doesn’t have any you like. The same goes for drinks, if you don’t like coffee, water or soda. If you have to take something every few hours, bring your medications. If you are on a special diet, bring your own lunch. While the mediator will order lunch at long mediations, it will usually be from a sandwich shop, or something that is near the mediator’s office. You could be at the mediation all day, and you do not want fatigue, hunger, or anything else to be a major factor in your decision-making process. They will be a factor, as fatigue is one of the reasons mediations work. Both sides just get sick of going back and forth with numbers and want to cut to the chase eventually. If you keep yourself nourished, hydrated and amused during the mediation, you won’t be as fatigued as the other side, which is usually advantageous.

Mediation – The Defendant’s Initial Offer

Just as your attorney will make an opening offer much higher than what you really are willing to settle for, the defendant will always make an opening offer far lower than the insurance company is willing to pay. Do not be insulted by the defendant’s opening offer. Many plaintiffs think that they are wasting their time at mediation when they hear the defendant’s opening offer. Expect a lowball offer. It may be $1,000.00 or $500.00, or some other low number no one in their right mind would accept. The defense knows you won’t take it. They are really just sending a message that your first number is far too high. Don’t get upset and don’t walk out regardless of how low the first few offers may be. Give it time. It usually takes at least an hour to get into “real world” numbers during a mediation. Why? Maybe gamesmanship, or maybe it’s just habit. With some mediations, the “real” numbers don’t get thrown around until after lunchtime.

Mediation Gamesmanship

Negotiating a settlement has become a game for some attorneys. Many attorneys do not like this aspect of mediation, as it is an enormous waste of time and energy. However, everyone feels compelled to play because it adds a level of predictability to the process. In general, mediation is just a process of “moving the middle.” The “middle” I refer to is the number in between the plaintiff’s last settlement offer and the defendant’s last settlement offer. So, if the plaintiff offers $300k and the defendant offers $100k, the middle is $200k. This middle moves each time counter-offers are made. If the next round of offers was: Plaintiff – $280k, Defendant – $110k, the middle just moved from $200k to $195k. Eventually, in a case that can settle, the numbers get close enough that the parties can agree to split the difference. In general, the key for the plaintiff is to keep the middle at or above what he or she wants to settle for. I say “in general,” because each mediation tends to run differently. Sometimes the mediation is running along smoothly, and then one side or the other, all of a sudden draws a line in the sand. While others, have a more predictable ebb and flow to settlement.

This explains why your attorney may open mediation demanding $300k even if your case is worth roughly $60k. Your attorney is just leaving negotiating room. The early offers in a mediation say less about where the case will settle than the difference between the last two offers from each side. For example, if you moved down $20k, and in response, the defendant moved up $10k, the inference can be drawn that the defendant will keep moving up $10k for every $20k you come down. If that movement will not result in you meeting your settlement number, your next offer may come down only $15k, to let the defendant know that you are willing to move down only $15k for every $10k they come up. This goes back and forth many times, often in smaller increments, until each side gets a feel for where the other is truly headed.

The main reason for the plaintiff starting way too high and the defendant starting way too low is to give each side enough room to move until they have determined where the other side wants to finish. At that point, if it looks like the numbers won’t meet, it becomes a battle of wills over who wants to settle more.

The problem with starting at a more reasonable number, say $75K for an initial offer on the $60k example above? The defense seems to always start at a low number, cutting any room for the plaintiff to settle at a reasonable number.

Mediation “Drop Dead” Offers

Often, mediation will eventually result in one side presenting a “drop dead” or “final number” offer to the other side. The “drop dead” offer means “take it or leave it.” The offering side will let the other know when the offer is a “drop dead” offer. Making a drop dead offer means that you do not want to hear any more counter-offers. Either they accept your number or the mediation ends without a settlement (known as an “impasse”). Realistically, people do make counter-offers to drop dead offers if their counter is very close to the drop dead number. Whether the drop dead offer is really a final offer depends on the people making it. Some adjusters actually mean “final offer,” while others simply mean “this is my final offer until I make the next one.”

Settlement Brackets

One tool in the mediator’s toolbox is to use brackets. This is common when both sides are either too far apart, or are moving very slowly. If one side is at $900k, and the other side is at $25k, which each side moving in $500 or $1k increments, the mediation may take weeks. A mediator, or one of the parties can propose a bracket with their next offer. Using the 900/25 example, the defense make make a counter off of “600/100.” This means that the defense is agreeing to come up to $100k, if the Plaintiff agrees to come down to $600k. Again, there’s some nuance and guessing if the other side is hinting at a midpoint here. The plaintiff can either:

1. Agree to the bracket
2. Counter with another bracket
3. Decline the bracket, or
4. Decline and make another counteroffer.

Choice 4 is generally not a good idea, as it is simply making another offer without one in return (negotiating against yourself).

Choices 1-3 really depend on how far along in the mediation the parties are. Usually, the next step is to counter with another bracket, with a higher midpoint number.

Mediator’s Proposal

If the mediation has crept to a crawl, and both sides appear to be digging in, but there’s still a chance the case could get settled, a mediator will oftentimes suggest using a “mediator’s proposal.”

The usual scenario:

The mediator notices that the chances of the case settling, at the rate it is going, appear to be going nowhere, so asks both sides if they want to do a mediator’s proposal. If both sides agree, the mediator will give a final settlement number. Note that this settlement number might immediate (as most mediators have an idea at this point where the case is going), or the next business day. Depending on the mediator, and the case, the parties may have 3 to 5 business days to accept or decline the mediator’s proposal.

The important thing about a “mediator’s proposal” is that if one side agrees to the number, but the other side doesn’t, the acceptance is not disclosed.

Mediator’s proposals seem to work pretty well in getting case settled. I assume it’s because the mediator is in the best position to know what either side is will to accept to get the case settled, but another factor is that since the number is coming from a disinterested 3rd party, it may carry more weight in that the number is a fair resolution to the case. It also comes at the end of the mediation, so the parties know that if they can’t get it settled, the case is likely going to trial.

Successful Mediation – Settlement

If you successfully settle you case at mediation, the mediator will prepare a settlement agreement for all parties to sign. You will get a copy to keep with you. The settlement agreement will usually include that you agree to sign a full and final release. I don’t know why, but defense attorney rarely bring this to a mediation.  Once it is sent over, your attorney will review and approve of the documents before you read through them and sign. Congratulations! Your case is now over and you will soon be paid.

Unsuccessful Mediation – Impasse

If your mediation results in an impasse, your lawsuit will just continue as if the mediation never occurred. However, all hope for settlement is not lost. It is common for cases to ultimately settle after a failed mediation (some within days, but some immediately before trial). Both sides tend to want to revisit settlement possibilities when trial approaches. However, do not take mediation lightly because you expect the case to settle at some time down the road. Mediation is usually your best chance to settle, as this is really the only time before trial that all parties are present.

This is by far the most common question plaintiffs have, and also one of the most difficult to answer. There is no formula one can use, but there are several factors your attorney will consider in arriving at a fair value for either settlement or trial. At one point, a garden variety car accident case would settle for 3x the medical bills. That time is long gone.

Liability

The first factor, liability, is fairly simple to understand. Did the defendant, through action (or sometimes inaction) that was either negligent or intentional cause you harm? An easy example of negligent conduct would be a driver running a red light and hitting your car. Intentional conduct would include things like battery — some drunk jerk punches you in the face.

Many times, the liability of the defendant will not be clear-cut.

If you are involved in a car crash and the result is a “swearing match” between you and the other driver as to what happened, there is always the chance that the jury will believe the other driver.

In slip and fall accidents, often there will be an issue as to whether the danger was “open and obvious” or whether the dangerous condition existed for an ample amount of time for the property owner to notice it. A prime example of the latter is a slip in a grocery store on a wet substance on the floor. If a customer spilled something seconds before you fell, you will likely lose. A common saying in the legal profession is that a property owner is not automatically the insurer of their guests, meaning that you don’t have a lawsuit just because you got hurt on someone else’s property.

Taking the grocery store example again, if the substance on the floor can be proven to have been there for a long period of time, or if it was spilled by an employee, you have a much better case.

The ultimate question on liability is “What are the odds I can prove that the other person is at fault?”

Comparative Fault

The question of liability doesn’t end once you’ve established that the defendant caused you harm through actionable conduct. There is also the question of comparative or contributory negligence — did your actions contribute to your injuries? For example, maybe you failed to wear your seat belt or you were speeding at the time of the accident.

In some states, you cannot recover anything if you were even 1% at fault. In others, such as Oklahoma, your damages will be reduced by your percentage of negligence, so that if you suffered $100,000.00 in damages, but were 25% at fault, you would only be awarded $75,000.00.

This factor considers the odds that the defendant will be able to prove that you are at least partially at fault.

Your Lawsuit-Related Medical Expenses

One of the only ways to objectively measure how badly you are hurt is to calculate your past and expected future medical expenses. Generally speaking, the greater these expenses, the more your case is worth. Be warned, however, that if you run up unnecessary medical bills you will not increase the value of your case. Also, the nature of the treatment will affect the value. Chiropractic or pain management treatment alone will not increase the value of the case as much as one significant surgery.

Wage Loss

This type of damages is fairly self-explanatory, but not nearly as simple to calculate as you might think. Basically, you are entitled to recover lost earnings for the time you missed from work in the past and time you will miss from work in the future. If your injuries make you no longer capable of performing your job, you are entitled to the difference between what you would have made in your current job and what you can now make in a job for which you are capable.

This gets complicated because the parties invariably disagree as to whether you are no longer capable of performing your job, and the types of jobs for which you may now be suitable. Does your low back injury prevent you from performing your desk job because it is painful for you to sit? You can be sure that experts will disagree on this subject. Do not take it as a given that you will be found fully disabled. There will be plenty of negotiating room as to a fair amount for your lost wages.

Self-employment is the most frustrating factor which comes into play in determining lost wages. Because self-employed people don’t have a weekly paycheck to reference, an in-depth review of your business is required to determine lost profits (note I said profits, not revenue). The effect on the business going forward is even more difficult to predict — can you hire someone to replace you and still be profitable? Finally, the self-employed also have a habit of reporting as little income as possible to the IRS (yes, you will have to produce your tax records). While maximizing your deductions to pay as little tax as possible may be good business, it makes for lousy wage loss damages in a lawsuit. Your tax returns will be the primary records by which the jury will determine how much money your business made.

Wage loss is simply the difference between how much you would have made were you not injured and how much you can make now. Figuring that out requires an honest evaluation of your current capabilities and how long your injuries will impair you.

Pain and Suffering and Emotional Distress

Pain and suffering and emotional distress damages are commonly referred to as “non-economic” damages, because unlike “economic” damages like medical bills and lost wages, you can’t produce documentation to prove their value. These types of damages are left to the mercy of the jury to decide. Often, the jury will use some multiple of your economic damages to come up with your non-economic damages. This could be 1x, 1.5x or 2x (or 0x or 20x) your economic damages. It is really impossible to say without knowing the specific nature of your injuries.

An injury that is especially traumatic may justify ignoring the economic damages entirely when determining the non-economics. For example, a young girl who is bitten on the leg by the neighbor’s dog may only have $2,000.00 in medical bills, but if she has significant visible scarring, her non-economic damages, and her dog bite claim, would be worth a lot more than $2,000.00-4,000.00. The same is true if she is now terrified every time she gets near a dog. On the other hand, a person can have an injury that costs a great deal to repair, but leaves no residual pain or disability.

Bottom line: non-economic damages are the most fertile ground for disagreement between the parties, and provide the most risk for both sides should they decide to submit the matter to a jury. While attorneys have jury verdict reporters available to them which summarize a sampling of recent verdicts in their state, no two juries will award the same amount of non-economic damages. Do not get overconfident if a case similar to yours recovered a large verdict. You will have a different jury which could reasonably come up with a much lower amount for your case.

Insurance Coverage

It may be surprising to some, but often times the amount of money you can recover will be limited by the amount of insurance the defendant has. For example, if you are involved in an automobile accident and suffer major injuries, but the defendant only has $25k in bodily injury insurance, you may be stuck recovering just $25k (less than that — maybe zero — once you take out medical bills). Sure, you may think that you can get the rest directly from the defendant, but do you really think that a person with the Oklahoma minimum for insurance coverage has any real cash or assets from which you can satisfy a judgment?

In the case of car insurance, you can protect yourself by purchasing uninsured/underinsured (UM) coverage, but for most other types of accidents there is no insurance you can buy that will pay for someone else causing you injury. The amount of the defendant’s insurance is a major factor to consider when determining how much your lawsuit is worth.

If you are unlucky enough to be the victim of an intentional act, such as a battery, there is a good chance that the defendant will not have any insurance to cover your injuries. Most liability insurance policies have exclusions for criminal acts and acts which are expected or intended to cause harm. In these cases, you can recover only from the defendant personally, and most defendants just don’t have the net worth to justify the cost of a lawsuit.

So how much money is your lawsuit worth?

Usually this comes down not to an exact number, but a broad range. The factors above (in addition to his or her experience with local juries and how generous they are) will be what your lawyer considers when evaluating your case. You can use the same factors to judge for yourself. If your attorney tells you that your case is worth less than you thought, it may give you some peace of mind to discuss with him or her which part (or parts) of your claim are problematic. The vast majority of attorneys don’t just pull numbers out of a hat when evaluating a claim. He or should be able to justify the range based on the factors in this article.

There is no “i” in team, and there shouldn’t be one in “IME,” either, because there is nothing “independent” about an IME in a personal injury lawsuit. In fact, plaintiff’s’ personal injury attorneys are more properly referring to these exams as DMEs, or “Defendant Medical Exams,” or “Insurance Medical Exams.” For purposes of this article, I will use the term “IME” only because it is the termed used by the insurance companies and their lawyers, but make no mistake about it, IMEs are in no way impartial, independent or any other “i” word implying lack of bias.

What is an IME?

So, what is an IME? In a personal injury lawsuit, an IME is a medical exam that the plaintiff must undergo at the defendant’s request, using the defendant’s choice of doctor, pursuant to discovery rules. While plaintiffs’ attorneys can have their own clients undergo an IME using a doctor of their own choice, plaintiffs really only need to be wary of the IMEs ordered by the defense (and these are the type of IME that I refer to throughout this article).

Why? Because the purpose of the IME is to prepare the defendant’s expert witness — the IME doctor — to testify that you are not hurt, or that you are not hurt as badly as you say you are, or if you were hurt, you have full recovered well before your treatment was over. Sometimes it is used to prematurely place you at MMI in an attempt to cut off your future medical care. The IME doctor knows who hired him or her and for what purpose, and if he or she ever wants to be hired by another defense attorney again (this is a lucrative repeat-business prospect), the doctor will slant their opinions to be as unfavorable to your case as possible. Knowing this, what can you do to minimize the damage caused by an IME?

How to Handle the Exam Itself

You will receive plenty of advance notice from your own attorney when the defendant has scheduled you for an IME. You will know the name of the doctor conducting the exam and his or her specialty (orthopedic, neurologist, chiropractor — depending on the nature of your injury). Your attorney may know this doctor and what to expect from him or her, as many are repeat players that your attorney has encountered before in other lawsuits. Listen carefully to any specific advice given by your lawyer, as he or she will know any tricks this doctor has employed in the past. Your attorney will also let you know if someone from his or her office will be attending the IME (such as your lawyer, a paralegal or a videographer). Rules for attendance by your own side vary among jurisdictions, and different lawyers have different approaches.

The first thing you need to realize is that you may be watched from the moment you arrive at the doctor’s office. Some IME doctors are zealous enough to watch the plaintiff as they enter the parking lot and as they leave, to see if the plaintiff lifts anything or walks differently when he or she doesn’t think the “patient” is being watched. Be cognizant of your behavior in the waiting room. If you claim trouble sitting for extended periods of time, be sure that you don’t sit still in the waiting room should the doctor decide to make you wait for an hour.

Take note of the exact time your actual exam with the doctor starts and ends.

It will be surprisingly short in most cases (maybe even 10 minutes). Write it down. This can be later used by your attorney to cross-examine the IME doctor.

Expect that the doctor will have you fill out a questionnaire regarding your medical history and current condition. If you need to bring some notes with you to remember some of these things, do so. Describe your medical problems consistently with how you have described them to your treating doctors. If you told your treating doctor you pain is a “6 on a 10 scale,” don’t suddenly up it to a “10” at your IME (unless you can explain what worsened your pain). Despite the fact that you filled out this questionnaire, the doctor will probably ask you many of the same questions during your physical exam. Feel free to refer the doctor to the questionnaire if you’ve already answered the question there. Asking you the same question twice is just a way to try to catch you in an inconsistency. Also, beware of the doctor trying to conduct his own deposition of you during the exam. If he or she is asking you questions about how the accident happened that do not affect your injuries (like whether the light was green or red), let the doctor know that you don’t feel comfortable answering that question before speaking with your lawyer. Then call your lawyer and see if he or she wants you to answer the doctor’s question. Usually, if a doctor tries to pull these kinds of shenanigans, calling your lawyer will put an end to it. Odds are, if your deposition has already been taken in this lawsuit, the doctor has received and read it before your exam, so there’s no reason for the IME doctor to need to ask those questions.

Do Not Exaggerate

Despite the fact that the IME doctor is trying to hurt your case, do not exaggerate your symptoms in an effort to compensate for their bias. This doctor wants you to lie so the insurance company can call all of your injuries into question. The doctor may even invite you to exaggerate by suggesting that certain body parts may hurt in the hopes that you’ll lie and agree. If your neck only hurts when you move it side to side, don’t say that it hurts when you bend it up and down as well. Certain types of injuries will lend themselves to certain painful movements, while not causing pain with others. For example, a shoulder injury may cause it to be painful to lift something with your arm extended in front you, but not cause pain when you lift something with your arm at your side. Describe the pain as it is, not as you think it should be or as the doctor suggests it should be. That being said, if the doctor does something which causes you pain, be sure to let him or know even you are not asked. Otherwise, the IME doc will assume that your silence means “no pain.”

Do Not Socialize

If this doctor is clever, he or she will probably be nice to you and try to get you into a talkative mood. Be polite, but don’t treat this meeting as a social conversation. The IME doctor is paid by the insurance company and their attorneys. The IME doctor doesn’t need to know that your kids play in little league or how you feel about your job. Keep reminding yourself why you are there and assume that anything you volunteer outside of medical information will come back to haunt you. This is not your treating doctor. Everything you tell the doctor will be relayed to the defense attorney.

Occasionally, I have seen IME doctors try to have plaintiffs fill out “exit interview” or “feedback” questionnaires which ask for your feelings about the medical exam. Do not fill this out. Politely decline and leave. The last thing you want is your positive review of this doctor’s exam being used against you in court. If you give a negative review, the doctor may characterize you as hostile and imply that you were not forthcoming during the exam because you didn’t like him or her. These types of exit interview forms are a no-win proposition — so it is best that you don’t fill them out at all.

The IME Report

After every IME, the doctor will generate a written report of his or her findings, which your attorney will receive within a month or so after the exam. Ask your attorney to let you see the report when he or she gets it, and note any inaccuracies in the report. Make sure the IME doctor did not put any words in your mouth. Note any complaints you made to the doctor which are not reflected in the report. Expect that the doctor will minimize your injuries as much as possible. The doctor may even claim that your injuries are unrelated to your accident. This is typical, and there is nothing you can do about it. You are mainly concerned with the facts, not the IME doctor’s opinions. Your lawyer will address the doctor’s opinions when the time comes.