Statistically 90% of all lawsuits filed are settled before trial. Of the 10% of the cases that go to trial 90% of them settle before verdict. Therefore, a very small percentage of cases are ever tried to conclusion. One reason is that the costs of trial are prohibitive and the results are never guaranteed. Good cases can be lost and bad cases can be won. Lets look at the costs related to a lawsuit. Filing fees run approximately $500.00. The EBT transcripts another $1,000.00 in a simple case. Medical and expert witness reports $750-$1,500.00 per doctor or expert. Hospital records and medical office records another $500.00. That brings us to the eve of trial. Expert doctors engineers, economists, life care planners all require from $7,500 - $10,000,00 each for testimony. Remember that each side is hiring these experts for themselves so both sides have significant costs. This is one factor in pushing the parties to settle a case before going to trial.
Other factors to be considered would be what a jury may decide to award a successful plaintiff on the one hand and on the other the risk that the jury may find against the plaintiff or not award sufficient sums to adequately compensate the plaintiff. Also to be considered are the demeanor of the parties and the viability of their version of the facts of the case; the extent of insurance or the ability to the defendant to pay for a major verdict if one is obtained. What is the sense of getting a verdict of $1,000,000.00 if the insurance coverage is only $300,000.00 and the defendant is otherwise without assets?
All of these factors are in flux as the litigation proceeds. Be assured at Tolmage, Peskin, Harris, Falick we prepare each case as if it is going to trial. To do otherwise would be foolhardy. Unless the pressure is constantly placed against the other side they will not be willing to discuss settlement. Leverage is key to bringing both sides together in settlement. By the same token, both sides have to be able to take less and to give more then they are first willing. It is often said that the sign of a good settlement is when both sides go away disappointed at the result.
The timing of settlement and the reputation of the lawyers is critical. There are certain plateaus during the life of the case when settlement opportunities present themselves. After deposition and before the case is put on the trial calendar; during pre-trial conferences with the court; after jury selection; during the trial. Each cases presents a unique set of facts that will affect the value of the case at each of these landmarks. It is your attorneys skill and reputation which plays a vital role in when the opposition will begin to put real money on the table. If your attorney is known in the community of defense lawyers as quick to settle then the insurance company will not put good value up as they anticipate being able to steal the case. If, however, your attorney is a "trial lawyer" ready, willing and able to go to verdict, this presents a different question to the insurance carrier footing the bill and they will come up with a better settlement offer. Patience is a virtue for the client so as to give the attorney enough room and time to push as hard as he can to get value for his client.
If settlement discussions are attempted at too early a stage it is impossible to determine the full extent of the damages. Will additional surgery be needed? Will the limp or scar be permanent? If plaintiff is too anxious to settle the results will not be to his advantage. If you are looking to buy a house and you tell the seller how beautiful the house looks and start decorating the house in your own mind, you will never succeed in getting the seller to reduce the asking price. So too in litigation. Haste makes for a poor result.
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