If you have been injured as a result of another person’s negligence and are evaluating your legal rights, you are not alone. According to estimates, 300,000 to 400,000 personal injury cases are filed each year, on top of claims settled before a lawsuit is even filed.
The vast majority of personal injury cases settle (upwards of 95%), but that still leaves thousands of cases proceeding to trial every year. If you have a legal case, what should you do? Should you take a settlement to get cash in your pocket, or fight your way all the way to trial? How does mediation fit in?
Figuring these things out can be stressful, but we know a big part of this stress is the fear of the unknown. To help you understand your options, we provide a little insight into how the litigation process works in Oregon.
Should I Settle My Personal Injury Case, or Do I Need to Go to Trial?
The Difference Between Settlements and Jury Verdicts
A settlement is an enforceable contract that resolves the parties’ legal dispute. The parties agree to a variety of contractual terms, including the amount of money that will be paid to the injured plaintiff. In return, the injured party agrees to drop their claims.
A verdict, on the other hand, is a decision issued by a judge or jury after considering all the evidence, law, and arguments presented to them at a trial. The fact-finder decides whether the defendant is liable and, if so, how much they owe in damages. If the court accepts the verdict (which it usually does), the court will issue a judgment based upon the verdict.
Damages Included in a Settlement or Verdict
Settling requires the parties to agree on how much the defendant (or, realistically, their insurance company) will pay the injured plaintiff. Some of the damages covered by settlements include:
- Current medical expenses:
- Ambulance expenses
- Hospital and doctor bills
- Home nursing costs
- Future medical expenses:
- Medications
- Surgery
- Rehabilitation
- Physical therapy
- Property damage to car or the car’s contents
- Lost wages
- Pain and suffering
- Emotional distress
The payout in a settlement can be lump sum or structured payments over time, but it is meant to cover all current and future harm the plaintiff suffered as a result of their injuries. This can be difficult to estimate, especially if the plaintiff is likely to require medical assistance for the rest of their life.
Pros and Cons of Settling vs. Trial
There are a number of benefits associated with settlement, including:
- Cost/efficiency: Trials take more time, energy, and money. Settlements still have some costs, such as getting an expert medical opinion to convince the insurance company that serious damages are owed, but settling is overall likely to be much quicker and cheaper.
- Stress reduction: Trials are stressful, and we aim to resolve cases quickly to alleviate that stress for our clients. Even if a trial becomes necessary, we work to shoulder the stress so that our clients don’t need to.
- Maintaining control: Both parties maintain some amount of control of their own destinies when a settlement is reached. When a case goes to a jury, there can be unexpected results. Settlement can help both parties shield themselves from the risk of the unknown.
- Quicker payout: Settlement usually results in the defendant (likely through his or her insurance company) paying the settlement amount promptly. Trials can delay this payment and result in drawn out appeals.
On the other hand, sometimes the opposing party or insurance company simply refuses to pay a fair settlement. This can happen for a lot of reasons that are no fault of the plaintiff. In those cases, a trial is necessary to fight for full compensation. A trial may also be necessary if the parties simply disagree on the facts and a jury is needed to resolve the dispute.
Should You Settle?
Ultimately, whether to settle depends on the specific circumstances of your case. There’s no one-size-fits-all solution. A number of factors play into the decision, including:
- The strength of the evidence supporting your case
- The severity of your injuries and whether you will fully recover
- The estimated value of your claim
- Your appetite for risk and how litigious the insurance company feels
- Whether you can afford to wait for a better reward
- The settlement offer
- Pre-existing injuries, comparative fault, and other factors that limit your claim
Discuss your case with your personal injury lawyer to make a decision that best suits your case, your preferences, and your needs.
How Does Mediation Affect My Personal Injury Case?
What Is Mediation?
Mediation is a form of alternative dispute resolution in which the parties to a lawsuit retain a neutral third party to attempt to settle their case.
Unlike arbitration, mediation is non-binding. The parties do not present evidence like a trial, and the mediator does not issue a ruling or decision. Instead, the mediator is trained to assist the parties in presenting and discussing their positions with an eye toward settlement.
If the mediation is successful, the case is resolved. If the mediation is not successful, the parties continue with their litigation.
Advantages to Mediation
Mediation has a number of benefits. First and foremost, it can be much quicker and cheaper than handling a case in court. You won’t rack up legal fees hiring experts, fighting over discovery, or other litigation matters.
Additionally, mediation allows parties to work collaboratively to resolve a case and avoid the stress of litigation. The mediation is conducted in an office, rather than a courtroom, and the parties are encouraged to work together to find a solution.
Limitations of Mediation
Mediation does not always work. Both parties must be willing and able to settle the case. If the defense lawyer doesn’t have authority from the insurance company to settle, for example, the process will fail.
Mediation also requires the parties to have enough evidence to make an informed decision, which means the parties may wait to start meditation until a reasonable amount of discovery has been conducted.
Some parties also worry that they’ll be giving away their trial strategy or other information useful to the other side, which can come back to hurt them later. A good lawyer can make sure this doesn’t happen.
Ultimately, we believe there’s little to lose by attempting to resolve a case through mediation. If it fails, the parties can always go back to the courtroom.
What Happens if My Case Goes to Trial?
Preparing For Trial
Good trial lawyers know that cases are won and lost by what happens outside the courtroom just as much as by what happens inside the courtroom. Both sides will investigate the case, interview witnesses, and exchange a mountain of evidence. There may be motions, including pretrial motions to include or exclude certain evidence or arguments.
Throughout the process, the parties may attempt mediation and settlement talks. If the parties can’t reach a settlement, the case will ultimately go to trial.
The Trial Process
There are a number of steps that take place during a jury trial. In brief, these include:
- Jury Selection (Voir Dire). A group of potential jurors is brought in and each side is permitted to question them. Each side can exclude or “strike” a certain number of jurors; whoever is left will decide the case.
- Opening Statements. Each attorney gets a chance to present a “roadmap” of the case to the jury – in other words, to tell the jury what the facts are expected to show.
- Plaintiff’s Case. The plaintiff (or injured party) has the burden of proof, and therefore gets to present their case first. They’ll present evidence and call witnesses to support their claims. The defendant’s attorney is permitted to cross-examine each witness called by the plaintiff. When the plaintiff is finished, they “rest” their case.
- Defendant’s Case. The defense then gets to present their own evidence and call their own witnesses, if they so choose, until the defense also rests.
- Closing Arguments. Each side makes their closing pitch to the jury based on the evidence presented.
Finally, it’s up to the jury to render a verdict. The court will instruct the jury about the law to apply to the case, and the jury will retire to the jury room to deliberate. They’ll make factual determinations and apply the law to the facts. Once the jury reaches a decision, they complete a verdict form which will be read in open court.
Call a Seasoned Oregon Personal Injury Lawyer for Answers About Your Accident Claim
The legal process can be complex and overwhelming. If you’ve been hurt because of someone else’s negligence and you’re trying to figure out what to do next, we are here for you. The Oregon personal injury attorneys at Nelson MacNeil Rayfield have helped countless accident victims get the compensation they deserve through settlement or trial. We’re ready to help you chart the best path forward.
For help with an accident claim or for answers to your personal injury questions, please call us for a free consultation.