Will my personal injury case settle or go to trial?

Clayton T. Hasbrook

Written by Clayton T. Hasbrook. Last modified on February 20, 2024

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Background on Personal Injury Cases

A personal injury case arises when someone suffers harm in an accident caused by another party’s negligence or wrongful conduct. The injured person (the plaintiff) can file a claim seeking compensation for medical treatment, lost income, property damage, pain and suffering, and other losses.

The plaintiff must establish legal liability and damages to have a valid personal injury case. This involves proving that the defendant owed the plaintiff a duty of care, breached that duty through negligence, and directly caused determinable losses.

Even though the defendant is a proper party to the lawsuit, their insurance company generally defends the case and decides what settlement offers to make.

Key Factors Influencing Settlement vs. Trial

Whether a personal injury case settles or proceeds to trial depends on the unique circumstances of each dispute. However, some considerations typically impact the likelihood of settlement.

Strength of Evidence

Cases with clear, indisputable evidence establishing liability tend to settle more often. If the fault is more complicated, the defense will be more likely to take its chances at trial. At the very least, this factors into lower settlement offers.

Nature of Injuries

More severe injuries that result in substantial losses and damages generally warrant higher settlement offers. Insurers may choose to settle these cases rather than risk the uncertainty of a trial. However, the insurance company is more likely to draw out the litigation on higher value cases vs. a quick, reasonable settlement offer at the beginning of the case.

Willingness to Negotiate

A settlement is more viable if both parties are willing to negotiate in good faith. Unreasonable demands or hostility between parties can cause talks to break down.

Accurate Evaluations of the Settlement Value

The main reason cases go to trial instead of settling is that one of the parties significantly undervalues or  overvalues what the case is worth. On the plaintiff’s side, many people will “research” cases on Google. The cases that are publicized the most are almost always the big cases. These types of cases generally include significant medical bills and future medical costs. Someone looking at slip-and-fall cases against Walmart may think most premises liability cases are worth at least $1 million. Still, they understandably overlook that they’ve completed treatment and are back to normal. The news stories also tend to leave out what Walmart did wrong. If the store created a dangerous condition, and they knew that the customers were likely to become injured and didn’t bother to clean up the mess, the verdicts also tend to be higher. Compare this to a customer who spilled a drink shortly before another customer walked through the area. Which one do you think a jury will get more angry with on Walmart’s behavior?

Settlement Negotiations and Mediation

Before commencing a trial, mediation provides an alternative route to resolve personal injury disputes. Most judges in Oklahoma require mediation before the case goes to trial. A neutral third-party mediator facilitates negotiations between the parties to reach a mutual agreement. Mediation can save time and expenses compared to litigation. Mediation is generally the best time to get a case settled. Statistics from mediators show that cases that go to mediation tend to settle 90+% of the time.  

Making the Decision to Settle or Go to Trial

If there is an offer on your case, the decision to settle is up to the client, not the attorney. The attorney can recommend settling, or if the offer is unreasonable, recommend going to trial. Either way, the decision is up to the client.

Choosing between settlement and trial involves carefully weighing the specific risks and advantages of each option:

Settlement Pros

  • Guaranteed compensation – juries are hard to predict even on a clear liability case.
  • Faster payment – payment is usually made within two weeks.
  • Avoid courtroom arguments – trials can be stressful for the witnesses and parties to the litigation.
  • Lower legal expenses – expert witnesses are expensive.
  • Greater privacy
  • Closure – the stress of continuing the case is now over.

Settlement Cons

  • Compensation might be less than hoped for – that’s why it’s called “settling”!
  • “Buyer’s Remorse” – you won’t know what a jury would have awarded.

Trial Pros

  • Chance to maximize compensation.
  • Getting your voice heard.
  • Public acknowledgment if the Plaintiff wins
  • Hold insurance companies accountable. Going to trial helps ensure fair offers on other personal injury cases.

Trial Cons

  • Risk of getting a verdict of a similar amount or less.
  • Much greater time and costs
  • It can be an emotionally draining process

Other Plaintiff Considerations

A verdict that is the same dollar amount offered is not worth the same amount to the plaintiff after all of the case costs and attorney fees are paid. This also ignores the risk of going to trial.

Plaintiffs’ attorneys typically operate on a contingency fee basis, collecting anywhere from 25-45% of the final settlement or court award. Most attorneys work on a “graduated” contingency fee where the fee percentage is lower for pre-suit and increases after the lawsuit is filed. It’s also common for the fee to increase once the case gets to the pre-trial conference. So, the “take home” amount for the client can vary based on how much time and money the attorney has invested in the case.

Let’s assume $25k in medical bills and an offer of $100k before a lawsuit is filed. Also, consider the case costs are $500 pre-suit, $1000 after the suit is filed, $2500 at mediation, and $6500 if the case goes to trial.  As the case progresses, each offer (or verdict) must increase to equal the same final payment to the plaintiff. Also, assume my math is correct(!):

  • Pre-suit: $100,000 (results in $49,500 net to the plaintiff after fees, costs, and medical bills are paid off)
  • After filing lawsuit: $113,250
  • At mediation: $115,500
  • At trial: $135,000

$100k Pre-Suit Settlement:

    • Attorney fee (25%) = $25,000
    • Case costs: $500
    • $25,000 Medical Bills
    • Net to Plaintiff  = $49,500

$113,250 Settlement After Filing the Lawsuit:

    • Attorney fee: 1/3% ($37.5k)
    • Case costs: $1,000
    • $25k Medical Bills
    • Net to Plaintiff = $49,500

$115,500 Settlement at Mediation:

    • Attorney fee: 1/3% ($37,750)
    • Case costs: $2,500
    • $25k Medical Bills
    • Net to Plaintiff = $49,500

$135,000 Verdict at Trial:

    • Attorney fee: 40% ($54k)
    • Case costs: $6,500
    • $25k Medical Bills
    • Net to Plaintiff = $49,500

Note: this assumes relatively low case costs to go to trial. The case costs could easily exceed $10k, depending on how many depositions are needed.

Other Defense Considerations

Historically, defense lawyers get paid by the hour regardless of the case outcome. This caused the insurance companies to factor in the “cost of defense.” An insurance company isn’t going to overpay to settle a case, but they do consider if they have to pay a defense firm $50k to defend a case at trial. Nowadays, just about every car insurance provider has switched to an “in-house” model. The defense attorneys are salaried employees of the insurance company. The insurance companies “farm out” some of the cases, but those are usually done on a flat fee. 

With an “in-house” defense model, insurance companies save on attorney fees. It doesn’t cost them considerably more for their employees to take cases to trial, which is why 95+% of the personal injury cases that go to trial are car accident cases.

Fact-Checked

This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Clayton T. Hasbrook who has years of legal experience as a personal injury lawyer. Our last modified date shows when this page was last reviewed.