Why injury cases don't always settle
Mr. Thompson lists:
will often emotionally commit to trial, where their grievances will be
heard, sympathized with, and publicly redressed. Compromise, as many
see it, is unprincipled.
2. Lack of Information–Any
evaluation system should be designed to supply the best information
possible under the circumstances. Counsel’s failure to supply the
necessary information to make judgments regarding settlement, or the
client’s failure to recognize the importance of that information
results in no settlement being reached.
3. Lack of Attorney Support–Settlement
requires the finest of attorney skills. For a settlement to have any
chance for success, a lawyer must take the lead, and support the
settlement effort. Once the choice is made to explore negotiating
serious accidents, the lawyer has a duty to carry out the negotiations
with all the skill and competence that can be mustered.
4. Lack of Communication–A
lawyer’s failure to convey the evaluation has the same effect as if
there had been on evaluation at all. This evaluation must not only be
communicated to the client but it must be explained so that the client
understands the reasons for the lawyer’s recommendation. All serious
accident cases require a thorough examination.
5. Lack of Appreciation of the “Economics” of Settlement–Recently
I was involved in a lively trial in which the opposing counsel rejected
a sizable settlement offer. Only his stubborn attitude obstructed
settlement. It made little sense, since even under the best of
circumstances, the opposing party could not have done as well by going
to court and facing a lengthy trial, court costs, the prospects of a
time-consuming appeal, and the loss of use of the settlement proceeds
in the interim.
These are all valid reasons for why a case may not settle. As a personal injury lawyer, I’ll add a few to the list:
1) Combative Nature – Oftentimes, the process of trying to settle a case leaves one, or both parties, feeling that the other side is being unreasonable. The suit has become personal not only because one party feels that they have been wronged, but the litigation process itself is tolling.
2) Failed Settlement – If the settlement process has failed, the parties often feel that they should “take ’em for all their worth.” A plaintiff will often feel that they are now being cheated out of a reasonable recovery.
3) Available Insurance Coverage – The parties may be more likely to go to trial If the injured party suffers damages that exceed the insurance coverage of the defendant.
4) Possibly a “Boston Legal” effect – Cases on TV happen in one day. The shows skip over all the fact finding, depositions, discovery costs, negotiations, and the time involved before a case actually goes to a trial. This makes the litigation process itself look a lot more appealing.