Settlement vs. Litigation
There are two main methods of resolving legal claims: settlement and litigation. Settlement involves all parties coming to a mutually acceptable agreement. Settlement is a voluntary process that requires everyone’s participation and agreement. Litigation does not require participation or agreement. Instead each party has an opportunity to present their side of the story through witnesses and evidence, and then a neutral body (judge, jury, or arbitration) makes a decision as to what is fair. Settlement is preferable, but sometimes litigation is necessary because the other party has no interest in being fair or participating in meaningful settlement discussions.
The main advantages of trying to settle a case include less costs for the client and less investment of time and energy for the client. Attempting settlement first is usually best for clients who do not have catastrophic injuries, who are hiring me primarily for convenience and my experience, and who would prefer to resolve their cases with a smaller investment of time and energy in the process. Unfortunately, some insurance companies have adopted a business plan that they do not make fair attempts to resolve claims for fair compensation by offering substantially less than a case would be worth in litigation.
Litigation involves some additional investment of time, energy, and costs. I typically do not recommend litigation unless there are good reasons to believe that litigation will be substantially more productive than settlement.
For most counties, claims under $100,000.00 go through a process of civil arbitration. In this process, the case is first presented to a lawyer or retired judge, then either side can appeal the decision to a jury trial. There is increased flexibility for presenting evidence — witnesses can testify via sworn declaration, by telephone, or in person. Much of the documentary evidence supporting your claim can be admitted without calling witnesses. There is a serious disincentive for appealing the decision from civil arbitration. If either party appeals and does not improve its position at trial, then that party must pay the other party’s attorneys’ fees and costs incurred after the arbitration. A non-appealing party bears no such risk. So, for example, assume that a case goes through civil arbitration and the arbitrator issues a decision that the at fault party must pay compensation of $20,000.00. Assume that the insurer for the at fault party appeals to a jury trial. If the jury returns a verdict of $21,000, then the insurer must pay $21,000, plus attorney fees and costs and expert witness fees for the jury trial. If the jury returned a verdict of $19,000 and you did not appeal, then you would receive $19,000 and not have to pay the insurance company’s attorney fees.
For cases over $100,000, the case goes directly to a jury trial.
Once a lawsuit is filed, the defense will almost without fail want to engage in the following pre-trial discovery:
- Interrogatories. The defense will ask written questions, and we have to provide written answers. This is usually pretty time consuming and intrusive. They are going to ask about all your prior medical history, prior injuries, prior employment, prior marriages, and many other irrelevant matters. I will work on the interrogatories with you, but ultimately, the burden of supplying the factual answer rests with you.
- Deposition. The defense has the right to take your deposition, where they will ask you oral questions, get oral answers, and a court reporter will transcribe everything. I will provide you with some pointers that will make you more comfortable with the process, but ultimately it is never fun to have your deposition taken.
- CR 35 examination. Typically, the defense will try to have you examined by a doctor of their choosing, so that doctor can testify against you at arbitration or trial. These doctors are rarely even-handed or objective. They are specifically hired for their skepticism and opinions that people who are hurt are really not objectively hurt, i.e., it is all in your head. These doctors will typically find that you are not hurt, your doctors over-treated you, you were already hurt before the injury producing event, etc. I will attend the examination with you and give you some pointers, but this process is never very fun for the client.
In addition, you will have to invest some time and energy into preparing for the arbitration or trial. This involves such things as helping with disclosures of witnesses and working on your presentation at arbitration or trial. You may need to participate in formulating the basis for motions that we make or responses to motions that the defense makes.
The filing fee for a lawsuit in Superior Court is $230.00. The mandatory arbitration fee is $220.00. Service of process on the defendant can range from $10 to $250 or more depending on the complexities of service. You have to pay for any depositions that we take (like of the defense’s examining doctor) and for any transcripts that we order. You have to pay for obtaining copies of your medical records, which can be quite expensive. There are typically photocopying, mailing, and messenger charges. The biggest single cost associated with trial is the cost of obtaining testimony from treating health care providers.
Related Posts
