In advertising as a personal injury attorney I am very careful about how I talk about my trial experience and my willingness to go to trial on behalf of my clients. Many people seem to want an attorney with trial experience. However, when the time comes to decide whether to accept the insurance company’s last best offer or file a lawsuit, the overwhelming majority of my clients elect to accept settlement. Many clients are fearful of litigation. For some clients this fear is absolutely justified. Below are a number of reasons why clients elect, or I may recommend, not to litigate their personal injury case.
Henderson Personal Injury Claim: Fear of the Unknown
Most personal injury clients are not even aware of the what the term “litigate” means. In its simplest terms, litigation means that I am going to file a lawsuit in the appropriate court to pursue my client’s legal rights. Many clients assume that the second we file a lawsuit we are looking at an imminent trial. The reality is that even in cases in which I am forced to litigate, better than 95% of those cases resolve without a decision by a judge, jury or arbitrator. However, the idea of sitting in a courtroom or being on the witness stand is terrifying to many clients. Some would even be willing to walk away with nothing rather than face the prospect of sitting on the witness stand being grilled by defense counsel. The idea of sitting through a deposition, answering written questions (interrogatories), and opening up their entire life to scrutiny is too much for the faint of heart. This is absolutely understandable. While I am totally comfortable in this world I have seen clients physically shaking when testifying and becoming anxious even talking about it. This fear can be the driving factor in clients accepting settlement offers that we may not feel are sufficient to fully compensate them.
Risk Of A Personal Injury Trial
Personal injury clients are often unfamiliar with how cases are brought to resolution. In the legal world cases are decided by what we term “the finder of fact.” In a jury trial, the jury will decide the facts and ultimately decide the case. However, personal injury cases may also be decided by a judge (bench trial) or by an arbitrator (arbitration). In every case, the finder of fact comes with their own biases and prejudices. In Nevada, state court juries are comprised of eight people – only six of which are necessary to arrive at a verdict. These eight people are unknown until they come into the courtroom for jury selection on the day of trial. They are a random cross-section of people from various backgrounds. You could end up with an incredibly sympathetic, compassionate group or majority of jurors which highly favors the plaintiff. Likewise, you could end up with eight of the most heartless, unfeeling, ultra-conservative jurors in the jurisdiction. At that point, your fate is sealed. Sometimes personal injury clients feel they are going to be able to tell their story to a “jury of their peers,” which they interpret as a jury filled with people who think and believe as they do. That would be nice but it does not happen. Juries are usually a diverse cross-section of people who have surprising biases and histories. Their decisions can be based upon the craziest facts. The jury system is truly a “black box” sometimes. This means there is really no rhyme or reason to how the jury arrives at its verdict. Judges and arbitrators are usually more predictable, but their biases are usually more pronounced. Neither jury, judge or arbitrator are known until after suit is filed, however.
Time Frame For A Personal Injury Trial Resolution
Some of my personal injury clients are absolutely fine with the litigation process and the accompanying risk. However, nearly every personal injury client is taken aback when I tell them when we might get a resolution. From the date of filing the lawsuit until we get to trial can take between 3 to 5 years. Sometimes the value of the case necessitates going through a mandatory non-binding arbitration before a jury trial can be had. When personal injury clients consider the potential difference between the offer on the table and the prospect of potentially improving on that offer by 10% to 20%, they almost universally elect to resolve the case. The idea of waiting even three years to get their case resolved is too much for most of them.
So When Does Anyone File a Personal Injury Lawsuit?
The issues above make litigation look like a bleak prospect. There are some mitigating factors that will convince some personal injury clients of the need to go forward with filing a lawsuit and entering litigation. The first, and most obvious, is when the client stands to get nothing from the settlement. Sometimes the offer is so low that after deducting costs, attorney fees and paying medical expenses and/or liens, the client is positioned to net little or nothing from the proposed settlement. In some cases, the personal injury client would still owe money to doctors for medical expenses based upon the offered settlement. In this situation the personal injury client usually has the “nothing to lose” mentality. Unless there is some glaring problem with the case, I am all for filing suit.
Another subset of clients are happy to tell their story and can’t wait to get in front of a jury. For them, the recovery is important, but not as important as getting some vindication. They want a chance to tell their story and want a jury or judge to tell them the value of their case. These are the rare clients for whom principle is more important than profit. If they lose, they lose. But they do not want to roll over simply to score a quick settlement. So long as they listen to legal advice and counsel these are great clients to have.
I sometimes have clients who decide they are willing to litigate when I explain to them that “risk” is a double-edged sword. Insurance adjusters and defense counsel do not want to incur legal fees and costs only to go to trial and pay more than they were willing to offer prior to the filing of suit. Sometimes adjusters will revisit settlement negotiations immediately after suit is filed. Once the client has “called their bluff” so to speak, the insurance adjuster will make an offer more in keeping with the true value of the case. This goes hand-in-hand with the time factor. Just because suit is filed does not mean the case will proceed to trial. As stated above, that is incredibly rare. As the case progresses and I can show the weaknesses in the defense, counsel for the insurance company will advise his client of the inherent risks of going forward and the case can settle. This can happen within just a few months of filing and the settlement will often be significantly better than what was offered pre-litigation.
In the event the case ultimately goes to trial, I am prepared to put my personal injury client’s case forward and fight for their rights. Justin and I have significant trial experience and have obtained many favorable verdicts. With those verdicts have come awards for attorney fees and costs which puts even more money in our personal injury clients’ pockets. Although that is not what most clients want, if necessary, Jones Wilson will take your case to trial to obtain the best result possible!