There are many factors that affect whether or not you should file a lawsuit in your personal injury case. Generally, I don't like to file a lawsuit unless other diplomatic efforts fail. However, just because diplomacy fails doesn't automatically mean you should file a lawsuit. Here are some factors an experienced personal injury lawyer will weigh when recommending whether or not filing a lawsuit would be prudent:
1) The age of the plaintiff and the age of the defendent. Jurors are generally biased against young people and older people. I'm not saying it's right, but it is a reality.
2) The "likability" factor of all parties. Look, to some extent this is like high school all over again - people vote for people they like and against people they dislike.
3) The persuasive ability of the other party's lawyer. Let's face it, if you are going up against a very good lawyer, you have to take that into consideration - no matter how good the facts are for your side of the case.
4) The willingness of all the parties to go to trial. Trials can take a financial and emotional toll on everyone.
5) Anticipated costs of going to trial. Sometimes you are better off accepting the offer on the table. In some cases, you might end up with less even if you recover more from a jury...simply because you are incurring some pretty steep costs.
6) The speed with which you will actually get a trial date. When this posting was made, California courts were closing courtrooms and laying off personnel. Trial dates are being assigned about a year from now.
7) The trial judge. In some cases, the judge may demonstrate a bias against you or your lawyer. Some plainly favor the other party. It's important to know how the judge may act since the judge will likely rule on many issues during the trial. You might have a great case, but if the judge is going to give your lawyer a hard time, you need to be aware of that issue.
8) You need to know what the available insurance limits are. What good is a judgment in excess of the policy limits if your chances of recovering the excess are very low?
9) Are the injuries severe? Juries don't award much unless there is a serious injury. Bad whiplash usually doesn't impress them.
10) Is the medical documentation strong and are the doctors willing to testify? Sometimes, simply getting doctors to agree to testify is nothing short of a miracle. It gets especially difficult if the doctors are affiliated with a larger outfit like Kaiser or Facey.
11) The likelihood you will persuade a jury you will need future care.
12) Is there residual injury or scarring?
13) How many liens are there on the case and how much are they?
14) Do you have the stomach for litigation? In my many years as a lawyer, I can't ever recall a client (plaintiff or defense) who enjoyed the lawsuit process.
These are just some of the considerations you should weigh when deciding whether or not to file a lawsuit in a case.
If you want more settlement money for your personal injury case, you need the evidence to back it up. I can't call the insurance company and say, "Hey listen, my client appreciates your offer of $50,000 to settle their case, but we want $250,000. Oh we have no evidence it's worth that much, but my client really wants more money!" The adjuster is going to need "proof" that your case is worth it.
That's not to say adjusters aren't stingy - many certainly are far too conservative when estimating case value. However, as much as I hate to admit it, sometimes the inverse is true - Sometimes, the injured client is greedy and has an inflated sense of their case's worth.
I recently had a case where my client was in a very bad car accident. She was offered $75,000 to settle her case which was a good ballpark starting point for negotiations. My client said, "But my shoulder still hurts me! I want enough money to last my lifetime! What if this continues to bother me?" I explained to her that I understood her shoulder hurt, but her MRI results were all negative, and the neurologist was also unable to find anything wrong. I explained that this personal injury case was not designed to be her "retirement plan." I told her, "We can't just go up to the jury and pound our fists and stomp our feet - we need evidence! The MRI report and neurologist's findings are negative!"
I don't mean to be discouraging, but I'm just trying to drive this point home - your desire for more settlement dollars has to be supported by more than your "demand" for more! You need hard evidence. If the evidence is there, then I have no problem asking for more settlement dollars if the insurance company is being unreasonable. We will present our case to a jury if necessary. However, my job is to make my clients aware of the realities. My job is NOT to tell them what they want to hear. Adjusters and juries are a stingy bunch, and they want to see hard evidence of your injury.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,