Settlement v. Trial

Legal experts on the internet often get asked "Should I settle my case?" The question is, occasionally, preceded by either a long and rambling set of mostly irrelevant facts or, on the other hand, just the amount of the offer.

Knowing when to settle a case is an art that only comes from long experience, thorough knowledge of your case, and a realistic view of what can happen, both good and bad, in trial. Parties who are pro se, pro per, or represent themselves are definitely at a disadvantage in knowing when to settle.

The old saying is that in a good settlement, both sides are a little unhappy. One side thinks they didn't get as much as they could have and the other side thinks they paid more than they should. They're both unhappy, but they can live with it.

If you want to know the value of your case you are going to have to do some research and by research I don't mean asking your friends and family, or even people on the internet, about cases similar to yours.

One of the most common phrases a lawyer hears when they are discussing the possible settlement of a case is that "Uncle Jimmy had a case exactly like mine and he got a gazillion dollars AND they will pay his medical bills for his lifetime so that is what I want."

I've said it before but the chances are Uncle Jimmy's case is nothing like yours. If yours is not a workers compensation case you are not going to get an insurance company to cover your medical bills for life. If you were in a car wreck and are comparing your case with someone who got "lifetime medical" as a part of their settlement then you are comparing apples and…something that is entirely different than apples.

Instead, go to the clerk of courts office for the court where your case would have a trial and ask to see the court files for the last 10 civil cases that were taken to a jury trial. In most courts that is going to be at least a year's worth if not more. Open the files and read through the documents and then look for the "Charge of the Jury" and "Judgment" and see what was awarded. The court file most likely won't contain the transcript of what was said in court so you are going to have to read between the lines to determine how much the medical bills were and then how much was awarded. If there was discovery such as Interrogatories and Requests for Production filed, read them carefully to see what allegations were made and the responses to those allegation.

Next, ask the clerk of you can see the exhibits offered into evidence at trial. Those will tell you what the jury actually had to look at when they were deliberating. Make notes as to what amounts the evidence shows and then also what amounts the jury awarded. If you do that for 10 cases then you start to get an idea on what a jury in your situation might award.

Then, you need to know what your chances are of winning the case. Anyone who says there is no chance they will lose…well, they need a lawyer or a quick lesson in reality. Every trial lawyer has lost cases they should have won and won cases they should have lost. Going to trial is a throw of the dice where you can control the dice…a little.

A good rule of thumb is to figure that you have no more than a 50-75% chance of winning your trial if you are pro se. The number goes up slightly if you have a lawyer, but you always have to figure there is at least a 25% chance you will lose your case.

By looking at what recent juries have awarded in cases similar to yours and knowing that you could lose then you have at least a guide to what you should consider a great settlement.

Let's use an example. Let's say that based on your medical bills, your injuries, and your research into the verdicts you know that a jury is likely going to award you $100,000. We also know that you have at least a 25% chance of losing even a great case, so that $100,000 is now worth $75,000. Using these basic facts and calculations, then a great settlement would be $75,000. But you need to go a little further. If your case is worth $75,000 today, what is it worth to settle it now, rather than wait a year for a trial and another year for an appeal? 

All of these factors must figure into your calculations and assist you in determining what a reasonable settlement in your case will be.

Oh, another tip, in almost all cases where the Plaintiff believes that the Defendant will settle because "they don't want the publicity"…don't settle.

Cases where you want a trial to "teach them a lesson"…the lesson ends up being, you shouldn't have went to trial.