Three Stages of a Personal Injury Case: What stage is best to settle or should I go to Trial?

Personal Injury is harm or damage caused to the physical body or mind of one person by another (whether a person or a company) by an act that fell below the standard of care of another.  Personal injury cases can come from car accidents, cruise ship accidents, airplane accidents, construction site accidents, defective products, attacks on property by third persons due to inadequate security, and animal attacks, among many others.  See our personal injury practice area section for more information on these types of accidents.

A personal injury case can be settled before a lawsuit is filed through informal negotiations (known as a “pre-litigation” or “pre-suit” settlement), during the lawsuit (even at the beginning or during trial), or the case can be left up to a Jury to determine.  The decision to settle your case at any stage or allow a jury to determine your fate, with the expectation of maximizing its value is an important and often daunting decision.

If you have suffered any damage or injury through any type of accident, you should seek advice from an experienced, reputable and established Firm like Dohan Law, before making a decision to settle your case.  Not only do we guide our own Clients with these decisions daily, we gladly provide second opinions to many clients of other lawyers about whether to settle their case or take it to a jury, free of charge.  An experienced trial attorney can guide you in making the best decision for you by explaining your injuries, case facts (those helpful and hurtful to your case), reasonable settlement value vs. the full value of your damages, as well as previous payments by insurance companies for similar injuries and verdicts reached by juries in the same locale.

The purpose of a settlement is to avoid the inherent risks of going to a trial, which are mainly that a jury will award you less that you want and you are left owing money to your doctors and possibly to a Defendant for their attorney’s fees and costs.  Once you decide to go to trial, the decision of how much money you will recover is no longer yours.

Of course, every personal injury case is different and has its own strengths and weaknesses.  Your personal injury attorney will help you decide what time for settlement is right for you based on your needs and the specifics of the case.


Should You Settle Pre-Suit?

At the center of any negotiations, you must decide what the minimum amount of money is that you are willing to settle your case for, and if the “pre-litigation” offer is enough to get you that amount, it may be best to settle your case at that stage.

Importantly, there may be other factors that play into a decision, such as the insurance policy limits of the at-fault party.  Some very valuable cases are settled for next to nothing because the person who was at-fault has little insurance coverage and no real assets to collect from.  Nevertheless, a majority of cases are settled at this stage after the Client has concluded their active  medical care.  Pre-suit settlements are cost-effective with little up front out-of-pocket expenses and yield a significant savings on attorney’s fees (which are 33.33% pre-suit).

At this point, the case is over and you can get back to living without having to worry about the case.


Should You Settle during Litigation?

To file a personal injury case in Court, it costs about $500, which includes the service of the Complaint on the Defendant.  Once a personal injury case is filed, and the Defendant hires a lawyer and Answers the Complaint, the attorney’s fee increases by 7% to 40% in compliance with the Rules of the Florida Bar.  Depositions cost about $500 each just for a copy of the deposition.  Mediation can cost up to $1,000 or more.  Interpreters charge about $100 per hour.  If your case requires an expert witness, those fees can easily exceed $5-10,000 per expert.  It is clear that there is an economic factor in deciding whether to settle a case pre-suit or to move forward and file a lawsuit.  In addition to the significant economics of filing a lawsuit, the time involved personally is significant.  Another factor Clients must consider is their time taken from family, work and life to attend meetings with their lawyer, depositions, compulsory medical exams, mediation and possibly a trial.  Litigation requires the Client’s participation and effort, as much as the attorney’s.

In some cases, a lower pre-suit offer will result in the same net recovery (the final dollar amount to the Client after attorney’s fees and costs and payment of all doctors’ bills and liens), or even more money, to the Client, than a much larger offer during a lawsuit.  Once a lawsuit is filed, it will normally take a much greater amount of money to get a Client the same amount of a much lower pre-suit settlement would have.

For example:

Pre-Suit Settlement

$10,000 Pre-suit settlement

$3,333 Attorneys Fee

$100 costs

$6,566 Net to Client in Pre-Suit Settlement


Settlement After Commencement of Litigation

$15,000 Lawsuit Settlement

$6,000 Attorneys Fees

$2,500 Costs

$6,500 Net to Client in Lawsuit Settlement


The above example illustrates how it usually takes a gross settlement of 150% or more than a pre-suit offer just in order to net a client the same recovery, had they accepted the lower pre-suit offer.

Unfortunately, insurance companies many times make “low ball” pre-suit offers, which just cannot be accepted due to the economics of the case (such as offers that are not enough money to even pay for the medical bills), and thus force Clients into filing lawsuits because there is simply no alternative.  Some lawyers accept these “low-ball” offers simply because they do not litigate cases in Court, and they develop a weak reputation with the insurance companies.  Other lawyers do not have enough money to fund the costly lawsuits.  At Dohan Law, we file lawsuits, litigate cases, have the financial means to take the cases all the way through trial.  We take great pride in obtaining the maximum value for representing our Clients at whatever stage.


Should You Go to Trial?

Going to trial and allowing a group of unknown individuals (known as a Jury) to decide your fate in is a decision that involves a very high level of risk.  Juries are extremely unpredictable, because they are made up of Citizens from all kinds of backgrounds, beliefs, values and morals.  For this reason, it is only when a Defendant and/or their insurance company fails to make a reasonable offer under the circumstances that the decision to go to trial is the better option.

There are several factors to consider when making the decision to go to a trial.  The first is recognizing the high risk of a low or $0.00 verdict.  If that happens, there is the risk of you owing the defendant’s attorney’s fees and costs.  Also, time and the Client’s immediate needs (ex. pending medical care, medications and others) must be considered since most cases do not even get to a trial until at least three to four years following the filing of the lawsuit.  There is a large back up of cases in many courthouses.  Finally, there are lots of delaying tactics used by defense counsel and the Defendant that can extend this time even further.

In general, Statistics show that about 90-95% of personal injury cases are settled out of court.  Whether to settle you case before a trial is a decision that should be made on a case-by-case basis, as each case is unique, and cannot be made on one factor alone.  When making this decision, you should make sure you discuss the options with an experienced attorney, who actually tries cases, and can inform you on the pitfalls and advantages of going to trial.  If you have a case and are considering your options, call Dohan Law now, free of charge, to discuss your case with an attorney who can provide you the information you need to make the best decision for you.