Are Accident Victims Better Off Settling Or Going To Trial

The age old question for a plaintiff attorney is whether to advise your client to accept the offer made by the insurance company or roll the dice and take the case to trial. Is this the best and highest offer you are going to get? Is it the bird in the hand or two in the bush? In the past I have used my own experiences along with the jury verdicts reports of trials with similar fact situations and injuries to determine the value of the case. Other intangible items such as the type of witness the plaintiff will make or their jury appeal are also considered. A recent study out of New York that explores how well plaintiffs and defendants in civil lawsuits did when they elected to go to trial over accepting the final offer made.

The results of this study show that plaintiffs in civil lawsuits are better off when they settle their case and should avoid going to trial. The statistics from the study show a majority of plaintiffs who take their case trial do not get the verdict they had hoped for. One of the interesting results is that more frequently the result in the trial does not exceedthe las offer made by the defendant.

Randall Kiser is the principal analyst who compiled the statistics. He is from DecisionSet, a consulting firm that advises clients on litigation decisions. These statistics were obtained from analyzing approximately 2,054 New York case over a 40 year period ending in 2004. According to the study Defendants are wrong when they decide to proceed to trial 24 percent of the time. The Plaintiffs did not fare as well being wrong 61 percent of the time.

One of the most interesting statistic reported in the study was that in 15 percent of cases where the parties could not agree on a settlement both sides benefited by going to trial. The defendant is said to have won by getting a jury verdict less than the plaintiff asked for. The plaintiff is considered a winner by getting a jury verdict that exceeded the defendant's final offer of settlement.

Estimates based upon statistics in the study state somewhere between 80 to 92 % of cases settle. The study questions the motives of lawyers in proceeding to trial, suggesting a financial motivation. The financial motivation on the part of the defense attorney could be in the form of additional hours which can be billed on the case. For the plaintiff attorney, I don't believe that the financial motivation would be that easy to pinpoint since it is a risk versus reward situation. That is, they may get a larger verdict and therefore a larger fee, but they also may get a smaller verdict and a smaller fee or even a zero verdict that would mean no fee at all.

Many insurance companies have policies of making low offers of settlement therefore forcing the plaintiff to trial. The decision in these cses is not made by the defense attorney but by the insurance adjuster.

What is in the clients best interest will be what the plaintiff's attorney will advise. This decision is made by evaluating verdicts from cases with similar fact situations and from that attorney's own experience. Unfortunately, there is no hard fast formula for determining a cases' true value. This is one of the reasons why it is important to get advice from an attorney who concentrates their practice in the area of law that is your case. This experience is a critical factor in the decision making process. It is up to you to make sure your attorney is completely frank with you in his opinion of your case, make sure you are given the "worst case scenario". You will have a better chance of making the right decision.

This study should not be used as a complete authority and a definite. As with any study, the types of cases used, the lawyers involved, the judges involved and the laws of the state where the study was conducted can all have an effect on the results. If you are an accident victim it is vital to keep an open and honest line of communication with your attorney.